Reproductions Supplied by EDRS Are the Best That Can Be Made from the Original Document

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AUTHOR Isler, Frederick D.; Zalokar, Nadja; Chambers, David; Kraus, Rebecca; Johnson, Wanda; Butler, Margaret; Avery, Michelle Leigh; Tyler, Marcia; Baird, Andrea; Foshee, Latrice; Turner, Ilona TITLE Helping State and Local Governments Comply with the ADA: An Assessment of How the United States Department of Justice Is Enforcing Title II, Subpart A, of the Americans with Disabilities Act. INSTITUTION Commission on Civil Rights, Washington, DC. PUB DATE 1998-09-00 NOTE 176p. AVAILABLE FROM U.S. Commission on Civil Rights, 624 Ninth Street, N.W., Washington, DC 20425. Tel: 202-376-8128. PUB TYPE Reports Descriptive (141) Reports Evaluative (142) EDRS PRICE MF01/PC08 Plus Postage. DESCRIPTORS Adults; *Agency Role; Arbitration; Children; *Civil Rights Legislation; *Compliance (Legal); Court Litigation; *Disabilities; *Disability Discrimination; Federal Regulation; *Law Enforcement; Program Effectiveness IDENTIFIERS Americans with Disabilities Act 1990; Commission on Civil Rights; Department of Justice

ABSTRACT This report from the United States Commission on Civil Rights focuses specifically on the efforts of the U.S. Department of Justice (DOJ) to enforce Title II, Subtitle A of the Americans with Disabilities Act, which prohibits discrimination based on disability by public entities such as state and local governments. The report evaluates DOJ's regulations and policies clarifying the language of the statute; processing of complaints of discrimination based on disability; litigation; and outreach, education, and technical assistance efforts related to the Act. The Commission finds that DOJ's implementation and enforcement program for the Americans with Disabilities Act is generally adequate, given its limited resources and extensive responsibilities. It finds that DOJ's greatest strength is its technical assistance and outreach and education program, which is extremely effective and praised widely by agency stakeholders. Another strength is DOJ's innovative use of alternative dispute resolution or mediation techniques to resolve complaints of discrimination. A general weakness of DOJ, however, is that it appears unresponsive to the concerns and priories of its stakeholders. To ensure that all stakeholders have a voice in DOJ's decision making, the Commission recommends that a formal mechanism be instituted to obtain input from interested parties. (Contains over 700 references.) (CR)

Reproductions supplied by EDRS are the best that can be made from the original document. 00 Helping Stateand Local Governments Comply with theADA

An Assessment of How the United States Department of Justice Is Enforcing Title II, Subpart A, of the Americans with Disabilities Act

U.S. DEPARTMENT OF EDUCATION Office of Educational Research and Improvement EDUCATIONAL RESOURCES INFORMATION CENTER (ERIC) O This document has been reproduced as received from the person or organization originating it. O Minor changes have been made to improve reproduction quality.

Points of view or opinions stated in this document do not necessarily represent official OERI position or policy.

A Report of the United States Commission on Civil Rights September 1998

BEST COPY AVAILABLE 2 U.S. Commission on Civil Rights The U.S. Commission on Civil Rights is an independent, bipartisan agency first established by Congress in 1957 and reestablished in 1983. It is directed to: Investigate complaints alleging that citizens are being deprived of their right to vote by reason of their race, color, religion, sex, age, disability, or national origin, or by reason of fraudulent practices; Study and collect information relating to discrimination or a denial of equal protection of the laws under the Constitution because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice;

AppraiseFederallawsandpolicieswithrespectto discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin, or in the administration of justice; Serve as a national clearinghouse for information in respect to discrimination or denial of equal protection of the laws because of race, color, religion, sex, age, disability, or national origin; Submit reports, findings, and recommendations to the President and Congress; Issue public service announcements to discourage discrimination or denial of equal protection of the laws. Members of the Commission Mary Frances Berry, Chairperson Cruz Reynoso, Vice Chairperson Carl A. Anderson Robert P. George A. Leon Higginbotham, Jr. Constance Horner Yvonne Y. Lee Russell D. Redenbaugh

Ruby G. Moy, Staff Director

s Helping State and Local Governments Comply with the ADA

An Assessment of How the United States Department of Justice Is Enforcing Title II, Subpart A, of the Americans with Disabilities Act

A Report of the United States Commission on Civil Rights September 1998 Letter of Transmittal

The President The President of the Senate The Speaker of the House of Representatives

Sirs:

The United States Commission on Civil Rights transmits this report, Helping State and Lo- cal Governments Comply with the ADA, pursuant to Public Law 103-419. The report, along with a companion report, Helping Employers Comply with the ADA (dealing with enforcement of title I of the ADA by the Equal Employment Opportunity Commission) reflects the Commission's commitment to ensuring that Americans with disabilities are afforded equal opportunity and that the Nation's civil rights laws prohibiting discrimination on the basis of disability are vigorously enforced. In accordance with this commitment, the Commission re- leases its first evaluation of the enforcement of the Americans with Disabilities Act, 8 years after enactment of the statute.

This report focuses specifically on the efforts of the U.S. Department of Justice (DOJ) to enforce title II, subtitle A, of the Americans with Disabilities Act, which prohibits discrimination based on disability by public entities such as State and local governments. The report evaluates DOJ's regulations and policies clarifying the language of the statute; processing of complaints of discrimination based on disability; litigation; and outreach, education, and technical assistance efforts relating to the act. The report also assesses DOJ's effectiveness in its role as coordinator of the Americans with Disabilities Act enforcement efforts of seven other designated Federal agencies.

The Commission finds that DOJ's implementation and enforcement program for the Ameri- cans with Disabilities Act is generally adequate, given its limited resources and extensive responsibilities. DOJ deserves positive recognition for several aspects of its Americans with Disabilities Act enforcement to date. Perhaps the greatest strength of DOJ's Americans with Disabilities Act implementation and enforcement efforts is its technical assistance and outreach and education program, which is extremely effective and praised widely by agency stakeholders. Another strength is DOJ's innovative use of alternative dispute resolution or mediation techniques to resolve complaints of discrimination. For many cases, mediation results in an expedited resolution of the case to the satisfaction of both parties, without the unnecessary use of resources for investigation or litigation. However, the Commission has identified several ways in which DOJ could improve its enforcement of title II, subtitle A, of the Americans with Disabilities Act and offers specific findings and recommendations to increase DOJ's effectiveness in carrying out its mission to enforce title II.

A general weakness of DOJ's Americans with Disabilities Act implementation and enforcement program is that it appears unresponsive to the concerns and priorities of its stakeholders, including individuals with disabilities, State and local government agencies, disability professionals, and disability experts. To ensure that all stakeholders have a voice in DOJ's decisionmaking related to the Americans with Disabilities Act, the Commission recommends that the Disability Rights Section, the office responsible for the Americans with Disabilities Act, institute formal mechanisms to obtain input from interested parties, such as an Ameri- cans with Disabilities Act Advisory Board comprised of persons representative of the broad range of DOJ stakeholders.

iii

5 Among important specific failings the Commission identified in DOJ's title II, subtitle A, implementation and enforcement program is that DOJ does not develop and publish indepth policy guidance documents to clarify the meaning of the law and explain the reasoning behind the positions it takes in controversial areas. Instead, DOJ's Americans with Disabilities Act policy development is limited to its enforcement and technical assistance activities, such as investigation of complaints and negotiation of settlement agreements, filing of arnicus curiae briefs, and development and dissemination of technical assistance materials. The divergent rulings among Federal courts on title II issues reinforces the need for DOJ to develop and publish formal title II policy guidance. The Department of Justice is required by its regulations to investigate all charges of discrimination it receives under title II. The Commission found that DOJ does not have enough investigators to investigate all charges of discrimination received. Without additional investigators, the length of time it takes for a complaint to be resolved and the possibility that the complaint may never be investigated are increased.

The Commission also found that DOJ has not directed sufficient resources toward establishing legal precedent that is binding on parties in subsequent cases. One significant obstacle has been that title II regulations require DOJ to attempt to negotiate a resolution to every complaint before considering litigation. However, the past has shown a positive result from more litigation efforts by DOJ in many areas affecting larger numbers of people, such as clarifying curb cuts and eliminating improper mental health inquiries in professional licensing procedures. Finally, the Commission found that DOJ has not fulfilled its responsibility to monitor and coordinate the ADA enforcement activities of the Federal agencies designated to enforce the statute. DOJ has not assigned staff to that function. Interactions between DRS and the designated Federal ADA agencies generally are informal and usually are initiated by the agencies when they believe they need assistance. Given that the designated agencies have not referred cases to DOJ in title II areas where it would be important for the Federal Govern- ment to engage in litigation to develop the law, it is evident that stronger leadership and coordination by DOJ is necessary. The report contains numerous other findings and recommendations to assist DOJ in en- hancing its enforcement of title II, subtitle A, of the Americans with Disabilities Act. Al- though DOJ can implement many of these recommendations within its existing budget, the major failings in the title II, subtitle A, enforcement effort, particularly the lack of investigators to investigate complaints of discrimination, cannot be rectified until DOJ receives additional resources for enforcing the Americans with Disabilities Act. The Commission calls upon Congress to provide the resources needed for DOJ to carry out the full range of its responsibilities under the Americans with Disabilities Act.

The goals of the Americans with Disabilities Actequality of opportunity, full participation, independent living, and economic self-sufficiencyare truly important. If achieved, they will enable all Americans with disabilities to realize the full measure of their potential and human dignity. A renewed national commitment to vigorous enforcement of the Americans with Disabilities Act is crucial to the achievement of these goals.

Respectfully, For the Commissioners, /3-(1_<,) MARY FRAN S BERRY Chairperson

iv Acknowledgments The administrative work, policy research, data analysis, onsite factfinding, and writing for this report were performed by the following Office of Civil Rights Evaluation staff: Frederick D. Is ler, Assistant Staff Director; Nadja Zalokar, Supervisory Civil Rights Analyst; David Chambers, Senior Civil Rights Analyst; Rebecca Kraus, Senior Social Scientist; Wanda John- son, Civil Rights Analyst; Margaret Butler, Civil Rights Analyst; Michelle Leigh Avery,* Civil Rights Analyst; Marcia Tyler, Community Relations Manager; Andrea Baird, Social Scientist; Latrice Foshee, Civil Rights Assistant; and Ilona Turner, Equal Opportunity Assistant. The following unpaid student interns made substantial contributions to the research and writing of this report: Stephanie Celandine, George Mason University; Kristy Mc Morris, Howard University; Jade Brown, Howard University; Alex Merati, The Catholic University; Dion Sy- monette, Prince George's County Community College; Raphael Prober, Georgetown Univer- sity; and Bonnie Schreiber, Georgetown University. The legal review was performed by Erik S. Brown, Attorney-Advisor. Editorial review was provided by James S. Cunningham, Assis- tant Staff Director for Congressional Affairs; Barbara J. Fontana, Librarian; Marc D. Pen- tino, Civil Rights Analyst; and Stella G. Youngblood, Civil Rights Analyst. The following unpaid student interns assisted in editing and conducting legal research for the report: Dorian Hamilton, Howard University School of Law; Nicholas Rathod, The American University Washington College of Law; Richard Bernstein, The Catholic University of America Colum- bus School of Law; and Ethan Susskind, The American University Washington College of Law. This report was developed under the direct supervision of Frederick D. Is ler, Assistant Staff Director for Civil Rights Evaluation.

The Commission especially wishes to thank the following agencies for the background information they provided the Office of Civil Rights Evaluation to assist in the Americans with Disabilities Act Project Design: the National Council on Disability, the President's Commit- tee on Employment of People with Disabilities, the National Institute of Disability Research and Rehabilitation, and the National Association of Protection and Advocacy Systems.

* No longer with the Commission.

7 Contents

1. Introduction 1

2. Overview of Enforcement of Title II 5 Civil Rights Division 6 Mission and Responsibilities 6 Organization, Budget, and Staff 7 Disability Rights Section 9 Creation 9 Mission and Responsibilities 10 Organization, Budget, and Staff 11 Use of Computer Technology 13 Staff Training 13 Past Performance 14 Strategic Planning 16 U.S. Department of Justice 16 Civil Rights Division 17 Disability Rights Section 17 Title II Implementation, Enforcement, and Compliance Activities 17 Regulatory and Policymaking Functions 17 Regulations 17 Policy 19 Coordinating and Monitoring Federal Agencies' Enforcement Efforts 19 Certifying State and Local Building Codes 22 Complaints Processing Procedures 23 Mail Process 24 Intake Process 25 Alternate Dispute Resolution/Mediation Process 26 Investigation Process 28 Litigation Process 29 Analysis of Complaint Processing Data 31 3. An Assessment of Title II Policy Development and Enforcement by the Department of Justice 37 Policy Development 37 Through Technical Assistance 37 Through Enforcement 38 Public Participation 39 Title II Compliance Requirements 40 Administrative Requirements 40 Notice 40 Self-Evaluation 40 Transition Plans 40 ADA Contact Persons and Grievance Procedures 41 General Nondiscrimination 42 Program Accessibility 43 General Requirements 44 Architectural Considerations 45 Existing Facilities 45 Leased Facilities 46 Historic Facilities 47

vi Educational Facilities 47 Courts 48 Sidewalks, Curbs, and Ramps 49 Public Parking 50 Voting 51 New Construction and Alterations 52 Certification 53 Equally Effective Communication 53 General Requirements 54 Forms of Communication 55 Interpreters 55 TDD Services 55 Signage and Auxiliary Aids 56 911 Emergency Telephone Services 56 Public Employment 59 Relationship Between Titles I and II in Public Employment 59 Title II as a Basis for Public Employment Discrimination Cases 61

4. Title II Policy and Enforcement in Specific Contexts 65 Law Enforcement and Emergency Services 65 Law Enforcement 66 Discrimination by Law Enforcement Personnel 66 Title II Litigation 67 Settlement Agreements 69 Technical Assistance Materials 69 Discrimination Against Law Enforcement Personnel in Employment 70 Title II Litigation 71 Technical Assistance Materials 71 Investigations and Policy Letters 72 Emergency Services 73 Discrimination by Emergency Services Personnel 73 Title II Litigation 73 Technical Assistance Materials 74 Settlement Agreements 74 Policy Letters 74 Discrimination Against Emergency Services Personnel in Employment 75 Title II Litigation 75 Settlement Agreements 77 Summary 77 Prisons 78 Applicability of Title II 79 Provisions Facilitating Access of Prisoners with Disabilities to Programs 81 Architectural Barriers in Prisons 82 Professional Licensing 83 Statutory and Regulatory Framework 83 Professional Licensing Issues 85 Application Requirements 85 Testing Procedures 89 Other Licenses 91 Public Health Care 92 Integrated Setting 93 Policies on Title II and Health Care 94 Policy Letters on Health Care Issues 94 A,nicus Curiae Briefs in Health Care Related Cases 96

vii Recent Legal Challenges and Research Studies 98 Technology and State and Local Government Web Sites 103 TechnologyEmerging Issues 103 General Advantages of Technological Devices and Services 105 Technology-related Assistance 106 Americans with Disabilities Act 107 Financial Barriers Associated with Assistive Technology 108 Examples of Federal Initiatives 109 U.S. Department of Education 109 U.S. Department of Defense 109 State and Local Government Web Sites 109 Barriers Associated With Web Sites on the Internet 110 Lack of DOJ Guidance to State and Local Governments on Web Site Accessibility 111 Other Activities Relating to Web Site Accessibility 113

5. Title II Outreach, Education, and Technical Assistance 116 Technical Assistance Plan 116 Interagency Coordination 117 Reporting 117 DOJ Technical Assistance Program 118 Early Implementation Efforts 118 Pre-1993 Implementation Efforts 119 Technical Assistance Manual 120 Training and Education Programs 121 Technical Assistance Grants and Contracts 122 More Recent ADA Implementation Efforts 123 Use of Varied Communications Methods 123 Extensive Efforts to Reach a Broad Audience 124 Specific Title II Technical Assistance and Outreach Efforts 126 Technical Assistance and Outreach to Minority and Rural Communities 127 Future ADA Technical Assistance Efforts 131

6. Findings and Recommendations 132 Tables 2.1 Top States from Which Complaints Are Filed 31 2.2Disability of Complainant 33 Figures 2.1Complaints by State 32 2.2Issues Addressed in Complaints 34 2.3 Agency to Which Complaints Were Referred 34 2.4 Length of Time Complaint Has Remained Open 35 2.5 Length of Time to Close Complaints 36

Bibliography 145

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10 Introduction

On July 26, 1990, 26 years after the passage and policies, failure to make modifications to of the Civil Rights Act of 1964,1 President Bushexisting facilities and practices, exclusionary signed the Americans with Disabilities Actqualification standards and criteria, segregation, (ADA) into law.2 With the enactment of this law, and relegation to lesser services, programs, ac- Congress provided a panoply of Federal civiltivities, benefits, jobs, or other opportunities."5 rights protections for persons with disabilities. Congress noted that "historically, society has The law seeks to ensure for people with disabili-tended to isolate and segregate individuals with ties such rights as equal opportunity in educationdisabilities,"6 that individuals with disabilities and employment; full accessibility to public ac-"occupy an inferior status in our society and are commodations, telecommunications, and health severely disadvantaged socially, vocationally, eco- insurance; and a total commitment by Federal, nomically, and educationally"7 and finally that: State, and local governments to supporting the rights of individuals with disabilities. individuals with disabilities are a discrete and insular minority who have been faced with restrictions and The statement of findings for the ADA is limitations, subjected to a history of purposeful un- compelling. Congress found that 43 million equal treatment, and relegated to a position of politi- Americans had physical or mental disabilities cal powerlessness in our society, based on characteris- and described in direct, powerful language the tics that are beyond the control of such individuals widespread discrimination faced by people with and resulting from stereotypic assumptions not truly disabilities throughout our history.3 Congress indicative of the individual ability of such individuals found that individuals with disabilities facedto participate in, and contribute to, society.8 discrimination "in such critical areas as employment, housing, public accommodations, edu-Furthermore, individuals with disabilities, unlike cation, transportation, communication, recrea-others experiencing discrimination, often had "no tion, institutionalization, health services, voting,legal recourse to redress such discrimination."3 and access to public services"4 and that the dis- Congress stated that "the Nation's proper criminationtookvariousforms,including goals regarding individuals with disabilities are "outright intentional exclusion, the discrimina-to assure equality of opportunity, full participa- tory effects of architectural, transportation, andtion, independent living, and economic self- communication barriers,overprotectiverules sufficiency"10 and that ongoing discrimination

Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 28 5 Id. § 12101(a)(5). U.S.C. § 1447, 42 U.S.C. §§ 1971, 1975a-1975d, 2000a to 6 Id. § 12101(a)(2). 2000h-6 (1994)). 2 Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 7 Id. § 12101(a)(6). 42 U.S.C. §§ 12101-12213 (1994). 8 Id. § 12101(a)(7). 3 42 U.S.C. § 12101(a) (1994). 9 Id. § 12101(a)(4). 4 Id. § 12101(a)(3). lo § 12101(a)(8).

1 against individuals with disabilities preventedcrimination in telecommunications.16 A fifth title the accomplishment of these goals: containsmiscellaneousprovisionsclarifying ADA's relationship to other laws and addressing [T]he continuing existence of unfair and unnecessary such issues as health insurance.17 discrimination and prejudice denies people with dis- The Americans with Disabilities Act defines an abilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free individual with a disability as a person who has: society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses(A) a physical or mental impairment that substan- resulting from dependency and nonproductivity." tially limits one or more of the major life activities of such individual; To eliminate this invidious discrimination, (B) a record of such an impairment; or (C) being regarded as having such an impairment.18 Congress stated that it is the purpose of the ADA: (1) to provide a clear and comprehensive national The basic nondiscrimination provision of title mandate for the elimination of discrimination againstII, subtitle A, states: individuals with disabilities; (2) to provide clear, strong, consistent, enforceable Subject to the provisions of this subchapter, no quali- standards addressing discrimination against indi-fied individual with a disability shall, by reason of viduals with disabilities; such disability, be excluded from participation in or (3) to ensure that the Federal Government plays abe denied the benefits of the services, programs,or central role in enforcing the standards established inactivities of a public entity, or be subjected to dis- this chapter on behalf of individuals with disabilities; crimination by any such entity.i° and (4) to invoke the sweep of congressional authority,Thus, title II, subtitle A, limits its coverage to includingthe powertoenforcethefourteenth "qualified" individuals with disabilities. Subtitle A amendment and to regulate commerce, in order to defines "qualified individual with a disability"as: address the major areas of discrimination faced day-to-day by people with disabilities.12 an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, To meet the goal of a universal ban on dis- the removal of architectural, communication, or trans- crimination against persons with disabilities,portation barriers, or the provision of auxiliary aids Congress created four separate titles in the act and services, meets the essential eligibility require- to prohibit the discrimination enumerated in the ments for the receipt of services or the participation in act's findings. Title I of the act bans discrimina- programs or activities provided by a public entity.2° tion against persons with disabilities inem- Subtitle A defines "public entity" as: ployment.13 Title II prohibits discrimination by State and local governments and requires that (A) any State or local government; (B) any depart- they ensure all activities, programs, and public ment, agency, special purpose district, or other in- transportation services they provide are accessi- strumentality of a State or States or local govern- ble to persons with disabilities.14 Title IIIpro- ment; and (C) the National Railroad Passenger Cor- vides for nondiscrimination against persons withporation, and any commuter authority (as defined in disabilities in public accommodations andcer- section 502(8) of title 45).21 tain public transportation services provided by private entities.15 Title IV of the act bans dis-

II Id. § 12101(a)(9). 18 Id., title IV, §§ 401-402, 104 Stat. 366, 366-69 (47 U.S.C. §§ 225, 611 (1994)). 12 Id. § 1210100(1)-(4). 17 Id., title V, §§ 501-514, 104 Stat. 369, 369-78 (42 U.S.C. §§ 13 Pub. L. No. 101-336, title I, §§ 101-108, 104 Stat. 330, 330- 12201-12213 (1994)). 37 (codified at 42 U.S.C. §§ 12111-12117 (1994)). 18 42 U.S.C. § 12102(2)(a)-(c) (1994). 14 Id., title II, §§ 201-246, 104 Stat. 337, 337-53 (42 U.S.C. §§ 19 Id. § 12132. 12131-12165 (1994)). 20 id. § 12131(2). 18 Id., title III, §§ 301-310, 104 Stat. 353, 353-65 (42 U.S.C. §§ 12181-12189 (1994)). 21 Id.§ 12131(1)(a)-(c).

12 Title II of the statute seeks to ensure thatment of Justice issued its regulation imple- State and local governments provide equal accessmenting title II, subtitle A, on July 26, 1991.26 to their services to people with disabilities.22 In This regulation designates eight Federal agen- May 1990, Rep. Don Edwards explained the pur- cies (including DOJ) to address complaints of pose behind title II in this way: discrimination under title II, subchapter A, with DOJ assuming an oversight and coordination The ADA extends the protections of section 504 of the role. The regulations state: Rehabilitation Act, prohibiting discrimination in federally funded programs, to all programs, activitiesThe Assistant Attorney General shall coordinate the and services of State or local governments, regardless compliance activities of Federal agencies with respect of the receipt of Federal financial assistance. Section to State and local government components, and shall 504 served as the first step toward breaking barriers provide policy guidance and interpretations to desig- that, for too long, kept persons with disabilities out of nated agencies to ensure the consistent and effective the American mainstream. ... Byenacting title II, we implementation of the requirements of this part.27 cover those remaining government entities who were not covered in the past.23 The designated agencies are: U.S. Department of Agriculture, U.S. Department of Education, U.S. As the ADA was being debated in Congress, the Department of Health and Human Services, U.S. main issues on which Congress was divided withDepartment of Housing and Urban Development, respect to title II were the extent to which theU.S. Department of Interior, U.S. Department of new law would encroach on traditionallyheldJustice, U.S. Department of Labor, and U.S. De- State and local prerogatives generally and the re-partment of Transportation.28 Under the regula- quirements for public transportation systems. For tion, each of these agencies is tasked with investi- example, Senator Pryor of Utah expressed con- gating and resolving complaints.29 In addition, the cern with respect to title II that "[t]his legislation regulation states that DOJ may assign responsi- basically preempts all State and local laws andbility for the implementation of compliance proce- regulations regarding access for the disabled."24 dures not assigned to specific designated agencies Congress has charged various Federal agen- to other specific agencies.30 If informal resolution cies with implementing the ADA. The U.S. De-efforts fail, a complaint may be referred to the partment of Justice (DOJ) is the agency primar- DOJ for possible litigation.31 ily responsible for subtitle A of title 11.25 Within In the 6 years since the ADA went into effect, DOJ, responsibility for enforcing title II, subtitlemuch has been said about overzealous enforce- A, of the ADA largely falls to the Disabilityment of the ADA by the Equal Employment Op- Rights Section of the Civil Rights Division. Toportunity Commission and the Department of obtain compliance with the ADA, DOJ uses im-Justice. But other observers have told the Com- plementing regulations, policy guidance, com-mission that they do not believe the two agencies plaint investigations, mediation, settlement, andhave been sufficiently aggressive in enforcing the in some cases, litigation. law, although they often give the agencies credit In compliance with the congressional refor trying. For instance, one individual told Com- quirement to promulgate regulations consistentmission staff that the basic perception in the dis- with the ADA and with the coordination regula-ability community is that there is no enforcement tions under 28 C.F.R. part 41, the U.S. Depart-

22 42 U.S.C. §§ 12131-12161 (1994). 23 135 CONG. REC. H2439 (daily ed. May 17, 1990) (state- 26 Nondiscrimination on the Basis of Disability in State and ment of Rep. Edwards). Local Government Services, 56 Fed. Reg. 35,694 (1991) 24 135 CONG. REC. 510741 (daily ed. Sept. 7, 1989) (state- (codified at 35 C.F.R. pt. 35 (1997)). ment of Sen. Pryor). 27 28 C.F.R. § 35.190(a) (1997). 25 42 U.S.C. § 12134(a) (1994). subtitle B, entitled "Actions 28 Id. § 35.190(b)(1)-(8) (1997). Applicable To Public Transportation Provided By Public 29 Id. §§ 35.170-178 (1997). Entities Considered Discriminatory," 42 U.S.C. §§ 12141- 12165 (1994), is under the regulatory authority of the U.S. 3° Id. § 35.190(c) (1997). Department of Transportation. 31 Id. § 35.174 (1997).

13 of the ADA.32 A grantee of the National Institute Eight years after passage of the Americans onDisabilityandRehabilitationResearchwith Disabilities Act, many basic issues, suchas (NIDRR) wrote, "The perception among peoplewho the act protects and what employers or other with disabilities and others in our region is thatcovered entities are required to do under the act, there is very little enforcement going on, yetwe remain unresolved. In large measure, these issues know that with the staffing available, there isa arise out of inherent ambiguities in the language tremendous amount being accomplished. Peopleof the law that have not been resolved through are not seeing implementation at the communitythe regulations or by the Federal courts. In addi- level."33 Another NIDRR grantee wrote, tion to these policy issues, concerns have arisen as "Basically, no federal agency with [ADA] enforce- to how effectively the agencies charged with en- ment responsibility is doing a great job."34 forcing the ADA have processed charges of dis- To date, the public debate over the impact andcrimination, and whether their technical assis- enforcement of the ADA has largely been carriedtance, outreach, and education have been success- out in the media. Sufficient time has elapsed,ful in informing covered entities, the disability however, since passage of the ADA for a more dis-community, and the public at large as to rights passionate and careful study of the ADA. There-and responsibilitiesunder the act. fore, under its mandate to evaluate Federal civil Some of the issues that have arisen specifi- rights enforcement, the Commission turns its at- cally with respect to the Department of Justice's tention to the ADA implementation and enforce-title II enforcement are: whether DOJ has devel- ment activities of the U.S. Equal Employmentoped and published sufficient policy documents Opportunity Commission and the U.S. Depart-on title II; whether DOJ has an adequate formal ment of Justice. In this report, the Commissionor informal mechanism for disability advocacy examines how well the U.S. Department of Jus- groups to comment on the cases and issues DOJ tice is fulfilling its mandate to implement and en-addresses; whether DOJ has mediated com- force the ADA's nondiscrimination prohibitions inplaints against State and local governments accessibility to State and local government serv-where a pattern or practice of discrimination ices under title II, subtitle A, of the act.35 A com- exists, with the result that the personal situation panion report evaluates the title I implementation of one individual with a disability is resolved but and enforcement activities of the U.S. Equal Em- the overall discriminatory practice continues; ployment Opportunity Commission. The reportswhether DOJ has engaged sufficiently in litiga- evaluate each agency's regulations and policytion to develop caselaw and put State and local guidance, participation in litigation, processing ofgovernment agencies on notice that they must complaints, and provision of technical assis-comply with title II; whether DOJ coordinates tance.36 adequately with State and local governments; and whether DOJ reviews State and localgov- 32 U.S. Commission on Civil Rights, Summary of National ernment entities' section 504 transition plans in Institute on Disability and Rehabilitation Research (NIDRR), relation to ADA compliance. Broader issues also ADA Technical Assistance Program Project Directors' Meet- exist, including whether the act has been suc- ing, Arlington, VA, Feb. 24-25, 1998,p. 6. This opinion was cessful in opening up opportunities forpersons expressed by an individual NIDRR grantee and does not reflect NIDRR's views on the effectiveness of ADA enforcement. with disabilities and what has been the cost of " NIDRR, ADA Project Directors' responses, p. 2. compliance. 34 Ibid., p. 5. In preparing this report, Commission staff did a literature review and sought information 35 The report does not include an evaluation of subtitle B of title II, which deals with discrimination in transportation, from the disability community, disability experts, and it also does not include any of the other ADA titles. and representatives of employers and State and 36 The report does not assess the role of State and local fair local governments. Staff also analyzed andas- employment practices agencies in the enforcement of title I. sessed numerous documents obtained from the The report also does not address the seven other designated Department of Justice, interviewed Department Federal agencies having title II responsibilities in areas such as transportation, agriculture, and education, nor does of Justice staff and officials, and analyzedcom- it evaluate the Department of Justice's oversight andcoor- plaint data from the agencies. dination of the designated Federal agencies for title II.

14 2Overview of Enforcement of Title II

Since 1973, State and local government pro-ties, must meet the section 504 standards incor- grams and activities that receive Federal financialporated into title 11.5 assistance have been prohibited from discrimi- The U.S. Department of Justice (DOJ) is the nating against individuals based on disability un-main Federal agency responsible for investigat- der section 504 of the Rehabilitation Act of 1973.1 ing and enforcing ADA title II compliance by Title II, subtitle A, of the Americans with Disabili- State and local governments.6 Within DOJ, ties Act (ADA)2 and its implementing regulations3 authority for ADA enforcement and administra- extend section 504's nondiscrimination mandate tion is delegated to the Civil Rights Division to all actions of State and local government enti- (CRD). CRD is charged with monitoring and re- ties, regardless of whether they receive Federalvising regulations, investigating and resolving funding.4 Thus, State and local government op- complaints of discrimination, enforcing compli- erations which do not receive Federal funds, suchance with the statute by State and local govern- as courts, legislative bodies, and licensing activi-ments, and coordinating the title II enforcement efforts of seven other Federal agencies.? Within

5 DOJ, CRD, Disability Rights Section (DRS), The Americans Pub. L. No. 93-112 § 504, 87 Stat. 355, 394 (codified as with Disabilities Act: Title II Technical Assistance Manual amended at 29 U.S.C. § 794 (1994)). Each Federal agency Covering State and Local Government Programs and Serv- has its own set of regulations that apply section 504 to its ices(1993), p. 1 (hereafter cited as DOJ/CRD, Title II Tech- programs. Typical 504 requirements include reasonable nical Assistance Manual); Arlene B. Mayerson, Americans accommodations for employees with disabilities, program with Disabilities Act Annotated: Legislative History, Regula- and building accessibility, and effective communication with tions and Commentary, 2 vols. (Deerfield, IL: Clark Board- people who have sensory disabilities. U.S. Department of man Callaghan, 1997), vol. 2, § 202, at 20-21. Justice (DOJ), Civil Rights Division (CRD), A Guide to Dis- ability Rights Laws (May 1997), p. 13 (hereafter cited as 6 DOJ coordinates the compliance activities of Federal agen- DOJ/CRD, A Guide to Disability Rights Laws). cies with respect to State and local government components and provides policy guidance and interpretations to these 2 42 U.S.C. §§ 12131-12134 (1994). Throughout this chapter, agencies to ensure the consistent and effective implementa- unless otherwise specified, the term "title II" is used as an tion of title II. 28 C.F.R. § 35.190(a) (1997). DOJ also en- abbreviation to refer to title II, subtitle A, of the ADA. While forces title II in more functional areas than the other seven DOJ is responsible for title II, subtitle A, of the ADA, the federal agencies responsible for title II compliance by State U.S. Department of Transportation (DOT) handles enforce- and local governments. See id. § 35.190(b)(1)(8). ment provisions of title II, subtitle B, which prohibits discrimination in public transportation. See 42 U.S.C.§§ 7 U.S. Commission on Civil Rights (USCCR), Funding Fed- 12,141-12165 (1994). DOT is charged with developing ADA eral Civil Rights Enforcement (1995), pp. 33-35 (hereafter regulations that specify requirements for transportation cited as USCCR, Funding Federal Civil Rights Enforce- vehicles and facilities. See 42 U.S.C. §§ 12164-12165 (1994); ment); John Wodatch, Chief, DRS, CRD, DOJ, letter to Fre- DOJ, CRD, Title II Highlights, (undated), p.1 (hereafter derick D. Isler, Assistant Staff Director, Office of Civil cited as Title II Highlights). Rights Evaluation (OCRE), USCCR, Feb. 6, 1998, attachment, "Subject: CRD Performance Plan as Mandated by 3 28 C.F.R. §§ 35.101.190 (1997). GPRAResponse toRequestforDocuments No.10" 4 See 28 C.F.R. § 35.102 (1997); 28 C.F.R. pt. 35, app. A § (hereafter cited as CRD Performance Plan as Mandated by 35.102. GPRA); and John Wodatch et al., Chief, Disability Rights 5

15 the Civil Rights Division, the Disability Rights develop guidelines for comprehensive employee Section (DRS) handles these title II implementa-training in civil rights enforcement.14 During the tion, enforcement, regulatory, coordination, and 1980s, the Civil Rights Division's Coordination technical assistance responsibilities to addressand Review Section was authorized by Executive and prevent discrimination based on disability.8 Order 12250 of 198016 to coordinate the civil rights enforcement activities of other Federal Civil Rights Division agencies under title VI of the Civil Rights Act of Mission and Responsibilities 196416 and title IX of the Education Amendments Established in 1957, the Civil Rights Division of 1972.17 The Coordination and Review Section of the Department of Justice is responsible for(a) assisted the other agencies in developing enforcing civil and criminal statutes, the Consti-guidelines and regulations for civil rights en- tution, and Executive orders.9 Although CRD ini- forcement; (b) established procedures to govern tially focused on voting and post-Civil War crimi- agencies' recordkeeping, reporting, and exchange nal statutes, the Civil Rights Act of 196410 ex-of information; (c) fostered cooperation among panded its authority." Under that act, CRD re-Federal, State, and local agencies; (d) evaluated ceives, investigates, and litigates charges of discrimination in places of public accommodation, 14 Exec. Order No. 12250, §§ 1-202 tot -207, 3 C.F.R 298 elementary through postsecondary schools, public (1981), reprinted in 42 U.S.C.§ 2000d-1 note (1988); facilities owned by State or local governments, USCCR, Funding Federal Civil Rights Enforcement, p. 26. programs or activities receiving Federal financial 18 Exec. Order No. 12250, 3 C.F.R. 298 (1981), reprinted in assistance, and employment.12 In 1980, Executive 42 U.S.C. § 2000d-1 note (1994). Executive Order 12250 authorizes the Attorney General to review all "rules, regula- Order 1225013 expanded the authority of CRD. tions, and orders" of Federal agencies that implement and The order empowered CRD to: assist other Fed- enforce title VI of the Civil Rights Act of 1964 and "identify eral agencies in developing standards and proce- those which are inadequate, unclear, or unnecessarily in- dures for civil rights enforcement; initiate coop- consistent." Id. § 1-202. In addition to title VI, this order applies to title IX of the Education Amendments Act of 1972, erative programs among agencies, including the section 504 of the Rehabilitation Act of 1973, and "any other development of sample memoranda of under- provision of Federal statutory law which provides.. .that no standing to improve the coordination of laws cov- person in the United States shall...be excluded from par- ered by the order; evaluate civil rights laws and ticipation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal regulations to improve their enforcement; and financial assistance." Id. § 1-201(a)(d). Within DOJ, the Coordination and Review Section (CORS) is responsible for monitoring the title VI implementation and Section, Civil Rights Division, U.S. Department of Justice, enforcement responsibilities, policies, and practices of Fed- interview, statement of Wodatch, Washington, D.C., Sept. 3, eral agencies that have financial assistance programs. This 1997, pp. 2-3 (hereafter cited as DOJ September 1997 inter- oversight responsibility requires that CORS issue guidelines view). on securing voluntary compliance, initiating sanctions, and 8 CRD Performance Plan as Mandated by GPRA; John Wo- referring cases of noncompliance to DOJ. The CORS' coordi- datch, Chief, DRS, CRD, DOJ, letter to Frederick D. Is ler, nators provide technical assistance to agencies to ensure Assistant Staff Director, OCRE, USCCR, Feb. 6, 1998, at- uniform enforcement of title VI. See USCCR, Federal Title tachment, "Subject: Mission and Functions Statements VI Enforcement to Ensure Nondiscrimination in Federally Response to Request for Documents No. 5," p. 5.; DOJ Sep- Assisted Programs (1996), pp. 48-49 (hereafter cited as Title tember 1997 interview, statement of Wodatch, pp. 2-3 ; and VI Enforcement). In 1995, when the Civil Rights Division DOJ, CRD, Enforcing the ADA. A Status Report from the reorganized, enforcement responsibilities for section 504 Department of Justice (January-March 1995), p. 3 (hereafter were transferred from CORS to the Disability Rights Sec- cited as DOJ/CRD, ADA Quarterly Status Report (January- tion. See Teresa Wynn Roseborough, Deputy Assistant At- March 1995)). torney General, Office of Legal Counsel, Memorandum for 9 USCCR, Funding Federal Civil Rights Enforcement, p. 23. Janet Reno re Proposed Reorganization of the Civil Rights Division, July 7, 1994, attachment, "Reprogramming Action 10 28 U.S.C. §1447, 42 U.S.C. §§ 1971, 1975a-1975d, 2000a to 2000h-6 (1994). FY 1994," p. 2; DOJ/CRD, ADA Quarterly Status Report (January-March 1995), p. 5 and USCCR, Funding Federal 11 USCCR, Funding Federal Civil Rights Enforcement, p. 23. Civil Rights Enforcement, p. 26. 12 Ibid. 18 42 U.S.C. §§ 2000d to 2000d-4a (1994); USCCR, Funding 13 Exec. Order No. 12250, 3 C.F.R. 298 (1981), reprinted in Federal Civil Rights Enforcement, p. 26. 42 U.S.C. § 2000d-1 note (1994). Exec. Order No. 12250 is 17 20 U.S.C. §§ 1681-1688 (1994); USCCR, Funding Federal explained below. Civil Rights Enforcement, p. 26. 6

16 the civil rights laws to improve their enforcement; within CRD that receive, process, investigate, and (e) trained employees to enforce civil rightsand resolve alleged violations of title II of the statutes more efficiently and effectively.18 ADA are the Disability Rights, the Special Liti- In the early 1990s, with enactment of thegation, Voting, and Housing and Civil Enforce- ADA,19 CRD's civil rights enforcement responsi-ment Sections.24 In addition,theDisability bilities again increased to encompass the ADA.20Rights Section has authority to enforce titles II Initially, CRD's Coordination and Review Sec-and III and can initiate litigation (a) under title tion carried out ADA legislative, regulatory, andII after conducting its own administrative inves- technical assistance activities.21 Reorganizations tigations and issuing a letter of findings upon within CRD have since transferred those re-referral from designated Federal agencies that sponsibilities from the Coordination and Reviewconduct title II investigations;25 and (b) under Section to the Disability Rights Section. In addi- title III, upon its own investigation and if there tion, some ADA litigation activities are carriedis reasonable cause to believe that "any person out by the Special Litigation Section. or group of persons" is engaged in a "pattern or CRD enforces title II and 11122 compliance bypractice" of discrimination or when it finds any 80,000 State and local government entities and 6person or group of persons has been discrimi- million private enterprises, respectively, that arenated against and the alleged discrimination covered by these two titles.23 The four officesraises an issue of general public importance.26 DOJ also may intervene or participate as ainicus curiae in litigation initiated by other parties.27 18 Exec. Order No. 12250, §§ 1-202 to 1-207, 3 C.F.R. 298 (1981), reprinted in 42 U.S.C.§ 2000d-1 note (1994); USCCR, Funding Federal Civil Rights Enforcement, p. 26. Organization, Budget, and Staff 18 42 U.S.C. §§ 12101-12213 (Supp. 1994). The Civil Rights Division is headed by the 20 USCCR, Funding Federal Civil Rights Enforcement, pp. 33- Assistant Attorney General for Civil Rights.28 35. Title III of the ADA is codified at 42 U.S.C. §§ 12181- 12189 (1994). Title III prohibits discrimination based on dis- 10" (hereafter cited as CRD Performance Plan as Mandated ability in public accommodations, commercial facilities, and by GPRA). Because of the growing backlog of title II cases other programs in private organizations, such as those that under the ADA, DOJ has implemented several initiatives to offer examinations and courses related to educational and assist CRD with its ADA investigative and enforcement en- occupational certification. Ibid; see also DOJ/CRD, "Title III deavors. See DOJ September 1997 interview, p. 3. For in- Highlights"; USCCR, Funding Federal Civil Rights Enforce- stance, some ADA duties are performed by all 94 of the DOJ's ment, p. 25. The Equal Employment Opportunity Commission U.S. attorneys' offices. Ibid. CRD delegates cases to the U.S. (EEOC) has significant enforcement responsibilities for title I attorneys where policy is clear. See DOJ November 1997 in- of the ADA. See EEOC, "Policy Guidance: Provisions of the terview, statement of Wodatch, p. 4. In particular, once CRD ADA." Although the Civil Rights Division has investigative determined the ADA requirements for telephone emergency and enforcement responsibilities for title III of the ADA, this services, the U.S. attorneys became responsible for handling chapter focuses on title II, subtitle A, of the statute. cases related to this matter. See DOJ September 1997 inter- 21 USCCR, Title VI Enforcement, p. 62. view, pp. 3-4. In addition, most States are managing title III 22 Title III is not evaluated in this report. Toby Olson, Direc- cases, although some have worked on title II cases regarding tor, Region X of Northwest Disability Business Technical access to city halls. See DOJ November interview, p. 4. Simi- Assistance Center, states, "the evaluation of the ADA should larly, DOJ is partnering with 26 States to issue and enforce be expanded to include implementation and enforcement of policies concerning service animals. See DOJ September 1997 title III. Title III presents the most significant gap in re- interview, p. 4. sources for ADA enforcement. The Department of Justice is 24 USCCR, Funding Federal Civil Rights Enforcement, p. 25. currently able to open investigations on only about forty 25 28 C.F.R. §§ 35.174, 35.190(6)(6), 36.503 (1997); CRD Per- percent of the title III complaints filed. In contrast, ninety formance Plan as Mandated by GPRA; USCCR, Funding percent of complaints filed under title II result in opened Federal Civil Rights Enforcement, pp. 25 and 34. investigations. The shortage of attorneys knowledgeable in the provisions of this title along with the limitations on the 26 42 U.S.C. §§ 12188(6)(1) (1994); CRD Performance Plan as remedies available through private law suits make it ex- Mandated by GPRA; USCCR, Funding Federal Civil Rights tremely difficult to find attorneys willing to take on even the Enforcement, pp. 25, 34. most meritorious Title III suits." 27 See John Wodatch, Chief, DRS, CRD, DOJ, letter to Fre- 23 USCCR, Funding Federal Civil Rights Enforcement, p. 25; derick D. Isler, Assistant Staff Director, OCRE, USCCR, John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick July 17, 1998, Comments of the U.S. Department of Justice, D. Isler, Assistant Staff Director, OCRE, USCCR, Feb. 6, p. 1 (hereafter cited as DOJ Comments, July 17, 1998). 1998, attachment, "Subject: CRD Performance Plan as Man- 28 DOJ, CRD, Organization Chart (May 17, 1995). Any refer- dated by GPRAResponse to Request for Documents No. ence in this chapter to an "Assistant Attorney General" re- 7

"L 7 CRD is comprised of an Office of Redress Ad- 1997, Congress appropriated $62.4 million to ministration; an Administrative Managementfund CRD's activities and programs.33 Despite Section; Complaint Adjudication Office; and 10these additional financial resources, CRD has "subject matter" sections. Each is responsible fornot received additional personnel since fiscal enforcing a range of civil and criminal statutes.29 year 1996, and the FTE level remains at 579.34 These 10 sections are: . The two sections of the CRD that have en- Appellate Section forcement responsibilities under the ADA are Coordination and Review Section the Disability Rights Section and the Special Criminal Section Litigation Section (SLS). The Disability Rights Disability Rights Section Section (DRS) is responsible for most of DOJ's Educational Opportunities Section enforcement activities under the ADA and is the Employment Litigation Section focus of this report. SLS handles some ADA is- Housing and Civil Enforcement Section sues and is discussed briefly. Special Litigation Section Generally, SLS is charged with protecting the Voting Section civil rights of persons in publicly operated insti- Office of Special Counsel for Immigration-tutions (such as juvenile and adult correctional Related Unfair Employment Practices. facilities, nursing homes, and facilities for per- Nine of the sections are headed by Section Chiefs sons with mental illness and cognitive disabili- who report to the Assistant Attorney General forties) when there have been systematic violations Civil Rights. The Office of the Special Counsel isof such rights.35 SLS enforces civil rights protec- headed by the Special Counsel for Immigration-tions embodied in Federal statutes such as title Related Unfair Employment Practices. II of the ADA, the Civil Rights of Institutional- To fund its additional compliance and en-ized Persons Act (CRIPA),36 and section 210401 forcement responsibilities under the ADA, CRDof the Violent Crime Control and Law Enforce- received increased annualappropriations ment Act of 1994 (VCCLEA).37 These civil rights throughout most of the 1990s.39 Resources appropriated by Congress rose by 90 percent between fiscal years 1989 ($27.8 million) and 1993 33John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Isler, Assistant Staff Director, OCRE, USCCR, Feb. 6, ($52.7 million).31 During this 4-year period, Con- 1998, attachment, "Response to Question 1: U.S. Depart- gress approved a CRD staff increase from 394 ment of Justice, Civil Rights Division, Appropriations and full-time equivalent positions (FTEs) to almost FTE (1989-1998)" and attachment, "Response to Document 500 FTEs.32 Request Number 10, Civil Rights Division, Salaries and Between 1994 and 1996, CRD's appropria- Expenses: Crosswalk of 1997 Changes." tions continued to increase; and in fiscal year 34Appropriations and FTE (1989-1998). 35John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Isler, Assistant Staff Director, OCRE, USCCR, Mar. 19, fers to DOJ's Assistant Attorney General for Civil Rights. 1998, attachment, "Preliminary Information Request for the DOJ was established in 1870. In addition to CRD, major Special Litigation Section: Response to Request for Documents organizations within the Department include the Drug En- No. 3," p. 2 (hereafter cited as. Special Litigation Section); forcement Administration, Federal Bureau of Prisons, Fed- USCCR, Funding Federal Civil Rights Enforcement, p. 25. eral Bureau of Investigation, Immigration and Naturaliza- 3642 U.S.C. §§ 1997-1997j (1994). CRIPA authorizes the tion Service, Community-Oriented Policing Service, Office of Attorney General to institute civil actions to remedy viola- the Inspector General, Office of Justice Programs, and the tions of the Constitution or laws of the United States at U.S. Marshals Service. See DOJ, Strategic Plan: 1997-2002 certain State and local residences for the developmentally (September 1997), pp. 5-6. disabled, juvenile facilities, nursing homes, and prisons and 29DOJ, CRD, Organization Chart (May 17, 1995). jails. 42 U.S.C. § 1997(a) (1994). 3°John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick 3742 U.S.C. § 14141 (1994) (authorizing civil action by At- D. Isler, Assistant Staff Director, OCRE, USCCR, Feb. 6, torney General to eliminate a "pattern or practice" of con- 1998, attachment, "Response to Question 1: U.S. Depart- duct by governmental employees that deprives persons of ment of Justice, Civil Rights Division, Appropriations and rights, privileges, or immunities protected by the Constitu- FTE (1989-1998)" (hereafter cited as Appropriations and tion or Federal law). The SLS uses the VCCLEA as an ad- FTE (1989-1998)). junct to CRIPA cases in juvenile detention facilities where there is a "pattern or practice" of abuse by detention officers. 31Appropriations and FTE (1989-1998). See Special Litigation Section, p. 1; USCCR, Funding Fed- 32Ibid. eral Civil Rights Enforcement, p. 25. 8

18 protections include quality of care; adequacy oftitles II and III (and enforced title III) of the food, clothing, and shelter; medical care; super-ADA.45 After less than 2 years, however, DOJ vision; safety; and training programs.38 In addi- acknowledged two problems with this arrange- tion, through enforcement of title III of the Civilment. First, since complaints often raised issues Rights Act of 1964,39 SLS prohibits discrimina-under more than one title of the ADA, the section in public facilities on the basis of race, re-tions were duplicating enforcement efforts.46 ligion, national origin, and disability.49 Second, the high volume of title II complaints With respect to the ADA, SLS is responsiblereceived by the Coordination and Review Section for processing, investigating, and resolving com- detracted from the its ability to enforce other plaints of alleged violations of title II, such ascivil rights laws.47 Further, DOJ officials recog- pattern or practice complaints regarding activi-nized that disability-related cases could be han- ties in publicly operated mental health, mentaldled more efficiently and uniformly by creating retardation,and juvenilefacilities;nursingone office staffed by personnel with expertise in homes; and other residential institutions.41 SLSdisability issues and laws. Such an office also staff promote the principle that communitycould serve as a central point of contact for per- placement is essential for institutionalized per-sons seeking information about or claiming vio- sons whose assessed needs can be met in lesslations of the ADA.48 restrictive settings.42 In March 1995, CRD changed the name of the Public Access Section to the Disability Rights Disability Rights Section Section (DRS) and transferred personnel from Creation the Employment Litigation and Coordination The Coordination and Review Section of CRDand Review Sections to DRS.49 CRD assigned all initially handled implementation and enforce-disability-related coordination and enforcement ment duties under the ADA.43 In 1992, DOJ di- responsibilities to the newly established Dis- vided ADA responsibilities among three sections: ability Rights Section. These responsibilities in- Coordination and Review, Employment Litiga-cluded all ADA regulatory, enforcement, techni- tion, and a newly established Public Access Sec- cal assistance, and certification activities, as well tion.44 The Coordination and Review Section reas similar activities required by section 504 of tained responsibility for administrative enforce- the Rehabilitation Act.50 ment of title II of the ADA, the Employment Litigation Section handled employment cases falling under title I of the ADA, and the Public Access Section developed technical assistance for 49 Ibid. See also John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Is ler, Assistant Staff Director, OCRE, 38 USCCR, Funding Federal Civil Rights Enforcement, p. 25. USCCR, June 3, 1998, DRS Response to Commission's In- 39 42 U.S.C. §§ 2000b to 2000b-3 (1994). formation Request, pp. 2-3 (hereafter cited as DRS June 3, 40 42 U.S.C. § 2000b (1994); Special Litigation Section, p. 1. 1998, Response). 41 USCCR, Federal Funding of Civil Rights Enforcement, p. 48 Roseborough memorandum, p. 2. 25; CRD Performance Plan as Mandated by GPRA. Before 47 Ibid., p. 3; USCCR, Funding Federal Civil Rights En- "late fiscal year 1996" the SLS investigated individual title forcement, p. 33. In fiscal year 1992, the Coordination and II complaints in jails and prisons. This responsibility was Review Section received 575 ADA complaints and began transferred to the Disability Rights Section in "late" fiscal investigating 301 of them. In fiscal year 1994, the number of year 1996. complaints was 1,414; and CORS began investigating 692. DOJ, CRD, Salaries and Expenses FY 1993, p. DOJ, CRD, 42 USCCR, Funding Federal Civil Rights Enforcement, p. 25; Salaries and Expenses FY 1994, p. 19; DOJ, CRD, Salaries CRD Performance Plan as Mandated by GPRA. and Expenses FY 1996, p. 18; USCCR , Funding Federal 43 USCCR, Funding Federal Civil Rights Enforcement, p. 33. Civil Rights Enforcement, p. 33. 44 Roseborough, Deputy Assistant Attorney General, Office 48 Roseborough memorandum, p. 2. of Legal Counsel, DOJ, Memorandum for Attorney General Janet Reno re Proposed Reorganization of the Civil Rights DOJ/CRD, ADA Quarterly Status Report (January-March Division, July 7, 1994, attachment, "Reprogramming Action 1995), p. 3. FY 1994," p. 2 (hereafter cited as Roseborough memoran- 50 DOJ/CRD, ADA Quarterly Status Report (January-March dum). 1995), p. 3. 9

19 BEST COPY AVAILABLE Mission and Responsibilities ment and title III technical assistance and en- TheDisabilityRightsSectionaimsto forcement.55 "provide equal opportunity for people with dis- DRS performs other functions related to titles abilities in the United States by vigorously andI, II, and III of the ADA. For example, DRS is effectively implementing the Americans withresponsible for developing regulations to imple- Disabilities Act (ADA)."51 To accomplish this ment titles II and 111.56 In addition, because DOJ goal, DRS focuses its efforts on enforcement,cer- is a member of the U.S. Architectural and tification, regulatory, coordination, technicalas- TransportationBarriersComplianceBoard sistance, and mediation activities.52 (Access Board), DRS staff participates in the de- According to DRS staff, almost 100 percent ofvelopment of ADA guidelines on building and staff time and financial resourcesare used tofacilities accessibility.57 enforce titles I, II and III of the ADA.53 Forex- DRS also handles requests from State and lo- ample, DRS is the only Federal agency author-cal government entities to certify that theirar- ized to litigate against State and localgovern- chitectural codes comply with ADA requirement employers under title I. DRS enforces titles ments. To help State and local jurisdictions II and III by investigating complaints and doingachieve certification, DRS provides technicalas- compliance reviews. DRS staff may also litigatesistance and does detailed evaluations of devel- cases based on title II complaints when DRS hasoping codes. Similarly, for the private sector, investigated and issued a letter of findings,cases DRS will review model architectural codes to referred to DRS by other Federal agencies,or determine compliance with ADA accessibility cases already being litigated by private parties. re quirem e nts.58 Because litigation requires significantresources, DRS staff and grantees provide free, exten- however, DRS generally will litigate only whensive technical assistance to the publicon the other attempts to resolve complaints, suchasADA. This technical assistance is offered insev- mediation and formal settlement agreements,eral formats. DRS receives more than 163,000 have failed.54 DRS staff estimate that approxi-calls a year to its toll-free ADA information mately 40 percent of staff time andresources arephone line, however, most technical assistance is used for title II technical assistance anden- provided in ADA publications, includinga series forcement, and approximately 60 percent of staffof technical assistance manuals and questions time and resources are used for title I enforce-and answers documents. Many of these publications are available on DRS' Web site or by faxon demand, and are also distributed to 15,000 pub- 51 John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick lic libraries. Some technical assistance ispro- D. Is ler, Assistant Staff Director, OCRE, USCCR, Mar. 19, vided in the form of video.59 1998, attachment, "Subject: Mission, Function, Responsibili- The ADA is the first of a new generation of ties, Planning, Organization, Staffing, and Budget, DRS civil rights laws in which Congress assigned Response to Request for Documents No. 1," p. 1 (hereafter cited as Mission, Function, Staffing, and Budget). Federal agencies not only the duty to enforce, 52 Ibid. but also to inform all parties (persons with dis- 53 DRS June 3, 1998, Response, p. 2. Approximately 4per- cent of staff time is devoted to coordination and certification 55 DRS June 3, 1998, Response, p. 2. activities, some of which fall under section 504 of the Reha- bilitation Act. Ibid. 56 See 42 U.S.C. § 12134 (1994). See also Mission, Function, Staffing and Budget, p.2. 54 Under section 513 of the ADA, 42 U.S.C. § 12212, the 57 See 29 U.S.C. § 792 (1994). See also Mission, Function, ADA regulations "encourage" the "use of alternativemeans of dispute resolution, including settlement negotiations, Staffing and Budget, p. 2; DOJ September interview,p. 2. conciliation, facilitation, mediation, fact-finding.. .and arbi- DRS' participation in the development of ADA Standards for Acceptable Design requires that the section staff use innova- tration...to resolve disputes arising under the Act." 28 C.F.R. § 35.176 (1997). If a public entity refuses to negotiate tive methods to solicit comments from corporations,gov- toward voluntary compliance, or if negotiations areunsuc- ernments, architects, and the disability community. cessful, a designated agency "shall refer the matter to the 59 See 42 U.S.C. § 12188 (1994). See also Mission, Function, Attorney General with a recommendation for appropriate Staffing and Budget, p. 2. action." 28 C.F.R. § 35.174 (1997). See also Mission, Func- 59 Mission, Function, Staffing and Budget, p. 3. See chap. 7 for tion, Staffing and Budget, p. 1-2. an indepth discussion of DOJ technical assistance activities.

10 20 abilities and covered entities) of their responsi-III, including a brief filed by DRS in a case bilities and rights under the law.69 DRS is nowchallenging a cap in medical benefits that was tailoring technical assistance to specific issues ofsignificantly lower for persons with AIDS.66 limited scope, such as its "ADA Guide for Small Businesses" document; initially, the Section cre- Organization, Budget, and Staff ated materials that were more comprehensive The Disability Rights Section is led by a Sec- and technical, like legal treatises.61 This changetion Chief who is responsible for the overall ad- has been made in response to feedback DRS hasministration of the Section and who reports to received from those persons who have requestedthe Assistant Attorney General for Civil Rights or used technical assistance materials. through a Deputy Assistant Attorney Genera1.67 Since June 1996, DRS also has had responsi-DRS has three Deputy Chiefs who report di- bilities under sections 212 and 213 of the Smallrectly to the Section Chief.68 Each Deputy Chief Business Regulatory Enforcement Fairness Actleads a team of six to seven attorneys, an archi- of 1996 (SREFA).62 SREFA requires all agenciestect, a paralegal, and a secretary. Each team is that regulate small businesses to publish Smallassigned to cover ADA cases arising within a BusinessComplianceGuidesandprovide specific group of States.69 Deputy Chiefs super- "informal small entity guidance" on request.63 vise all stages and aspects of litigation, review Finally, DRS is responsible for adjusting totechnical assistance documents, and assist the new issues as its staff sees them developing.Section Chief in management and substantive This is a particular strength of DRS.64 ExamplesADA policy matters." of such issues under title III include: (1) NCAA Several positions in DRS report directly to cases involving the scholarship eligibilityof stu- the Section Chief. These include a Special Legal dents with learning disabilities; (2) the trend inCounsel, a Special Litigation Counsel, a Techni- movie theater design to stadium-style seating,cal Assistance Program Manager, and a Supervi- which presents particular problems for persons sory Attorney for Certification and Coordination. who use wheelchairs; and (3) the use of inter-Supervisory Attorneys for Investigations and preters in hospitals, although most title II issuesOffice Administration also report to the Section arise in contexts such as courts and prisons; inChief, but through a Deputy Chief.71 These fact, over half of the title II complaints DRS re-management positions, along with the Deputy ceives come from prisoners.65 ApproximatelyChiefs, form a Management Team that assists one-quarter of the complaints DRS receives arethe Section Chief with various responsibilities, about hotels (under title III). In the emergingsuch as deciding administrative or policy issues. area of insurance, DRS concentrates itsre- With the exception of the Supervisory Attorney sources on cases involving automobile or homefor Office Administration, all of these manage- insurance matters rather than health or life in-ment officialsalso providedisabilityrights surance to minimize the impact of complex fact-training and technical assistance to other Fed- finding that would arise from dealing with actu-eral agencies, disability rights organizations, arial issues. Most of these_ cases fall under title

69John L. Wodatch, Chief, DRS, U.S. Department of Justice, 66Ibid.

Interview, April 16, 1998, p. 3 (hereafter cited as Wodatch 67DOJ, DRS, Organizational Chart (Aug. 21, 1997); John interview). Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Is- 61Ibid., p. 3. ler, Assistant Staff Director, OCRE, USCCR, Mar. 19, 1998, attachment, "Subject: Mission, Function, Responsibilities, 62Pub. L. No. 104-121, §§ 212, 213, 110 Stat. 857, 858-59 Planning, Organization, Staffing, and BudgetResponse to (1996) (codified at 5 U.S.C. § 601 note (Supp. II 1997)). This Request for Documents No. 2," p. 1 (hereafter cited as Or- act requires agencies that regulate small businesses to establish a program that advises businesses on complying with ganization, Staffing, and Budget). statutes and regulations. Id. § 212; CRD Performance Plan 68DOJ, DRS, Organizational Chart (Aug. 21, 1997); Organi- as Mandated by GPRA. zation, Staffing, and Budget, p. 1.

63CRD Performance Plan as Mandated by GPRA. 69Organization, Staffing, and Budget, p. 1.

64Wodatch interview, p. 3. 713Ibid., p. 2.

65Ibid. 71Ibid., pp. 2-6.

11 and groups subject to Section 504 and/or ADAthe administrative activities of DRS, includinga requirements.72 staff assistant, two interpreters, front deskper- The Special Legal Counsel primarily is re-sonnel, mail processing and data processingper- sponsible for reviewing all ADA briefs, policysonnel, student interns, and secretarial staff. letters, technical assistance materials, and ADAThis Supervisory Attorney oversees procurement policy documents from other Federal agencies toand budget issues, mail processing, officespace verify they are based on sound legal principles.allocation, and development of administrative The Special Legal Counsel also participates inpolicies and procedures.78 the development of ADA investigations and liti- DRS has 23 staff attorneys, 19 of whom work gation.73 The Special Litigation Counsel isre- in the Enforcement/Litigation Unit, and 15 in- sponsible for litigating those cases involving sig-vestigators. /9 Investigators are expected to have nificant legal issues that are likely to establishstrong investigative skills and a thorough un- important precedent.74 The Technical Assistance derstanding of the ADA." DRS also has sixar- Manager leads a multidisciplinary team of 20,chitects who advise attorneys and investigators including an architect/accessibilityspecialist, on technical matters and review State accessi- equal opportunity specialists, program analysts,bility or building codes that have been submitted student interns, and a secretary. In addition, theto DOJ for certification.81 Other DRS personnel Technical Assistance Manager supervises opera-include 14 technical assistance staff, 7 certification of the toll-free ADA information line andtion and coordination staff, and several support maintenance of the DRS Web site, and coordi- staff.82 In total, DRS is composed ofmore than nates technical assistance publications efforts.75 70 professional and support staff persons,83up The Supervisory Attorney for Certificationfrom 22 in 1992 when the section was called the and Coordination also supervises a multidisci-Public Access Section and had fewer responsi- plinary team of attorneys, architects/accessibilitybilities.84 DRS anticipates a staff of 73 for fiscal specialists, civil rights program specialists, anda year 1998.85 secretary. In addition to managing DOJ's coor- To fund DRS' activities and programs, Con- dination and certification activities, this Super- gress appropriated $9.25 million in fiscal year visory Attorney is CRD's liaison to the Architec- 1997 and $10 million in fiscal year 1998.86 Attor- tural and Transportation Barriers Compliance ney General Janet Reno has asked Congress for a Board.76 13.7 percent increase in funding for fiscalyear The Supervisory Attorney for Investigations1999 to continue vigorous enforcement of the oversees all stages of complaints processing, including intake, investigation, mediation, and negotiation. When mediation does not resolve a case, the Supervisory Attorney for Investigations decides how such cases should proceed. This Su- 78 Ibid., pp. 5-6. pervisory Attorney also decides which title II 79 John Wodatch, Chief, DRS, CRD, DOJ, letterto Frederick cases DOJ should investigate and which it D. Is ler, Assistant Staff Director, OCRE, USCCR, Mar. 19, should refer to other agencies, and makesrec- 1998, attachment, "Subject: Mission, Function, Responsibili- ommendations to the Deputy Chiefs as to which ties,Planning,Organization,Staffing,and Budget title I and title III cases to "open."77 Responseto Request for Documents No.3,"pp.1-7 (hereafter cited as Organization, Staffing, and Budget The Supervisory Attorney for Office Admini- Document 3). stration supervises those employees involved in 88 DOJ interview, Nov. 7,1997, p. 4. 81 Organization, Staffing, and BudgetDocument 3,pp. 2-7. 72 Ibid., p. 6. 82 Organization, Staffing, and Budget, pp. 1-4. m Ibid., p. 3. 83 DOJ, DRS, Organizational Chart, Aug. 21,1997. 74 Ibid. The Special Litigation Counsel currently servesas an Acting Deputy Chief. Ibid. 84 USCCR, Federal Funding of Civil Rights Enforcement,pp. 33-34. m Organization, Staffing, and Budget, pp. 2-3. CRD Performance Plan as Mandated by GPRA. 76 Ibid., p. 4. 86 Ibid. The fiscal year 1998 budget figure isan estimate. 77 Ibid., p. 5. Ibid.

22 ADA.87 This additional funding, $1.27 million,would be handling ADA cases.93 At that time would enable the Disability Rights Section to hire staff attended a 5-day training program on all additional attorneys, investigators, mediators,titles of the ADA, the regulations, the ADA and architects.88 Additional funds would be used Standards for Accessible Design, different types as follows: (1) $507,000 for four attorneys and four of disabilities, and issues of significance to per- investigators, as well as funds for architects, and sons with disabilities. The Disability Rights others who serve as prelitigation consultants to Education and Defense Fund (DREDF) con- increase enforcement efforts; (2) $263,000 in in- ducted the training as part of a contract with the creased funding for two attorneys and three spe-Equal Employment Opportunity Commission cialists to help other Federal agencies enforce sec- (EEOC). The initial training also included sev- tion 504 of the Rehabilitation Act and title II oferal inhouse training sessions on the regulations the ADA; and (3) $500,000 in additional fundingand standards of the ADA. In addition, training to expand the mediation program.89 sessions from outside groups about disability specific issues were held.94 Recently, Assistant Use of Computer Technology U.S. Attorneys and DRS conducted a 2-day Information about the Disability Rights Sec-training session for the U.S. Attorney office staff, tion can be obtained from the DRS' ADA home and last year DRS provided similar training for page99 or from the home page of the Civil Rights the investigators.95 Division.91 These Web sites provide helpful in- DRS staff acknowledges the necessity for formation about DRS, including DRS' addresstraining, since the ADA is a very complex stat- and phone numbers for voice and TDD. The pur-ute.96 Generally, DRS staff believe that the pose of the DRS and a listing of the Section's re- training they have been given regarding the sponsibilities are available. For instance, DRSADA has been more than adequate and has al- informs Internet users that it engages in techni- lowed them to perform their jobs wel1.97 Mem- cal assistance activities to raise public aware- bers of the investigative staff indicated that the ness of the ADA. There also is an ADA toll-freeon-the-job training they have received is better information line for both voice and TDD whichthan any other training they could get, particu- includes a fax-on-demand service allowing the larly because every ADA case is different from public to have ADA publications faxed directly to the one before.98 One investigator, who re- their home or office 24 hours a day. According to sponded to calls on the ADA information line for DRS, the ADA home page on the Internet re- 2 years, feels that this was a beneficial form of ceives up to 70,000 hits per week.92 A standard training.99 form for filing a complaint under title II is available by fax, and this fax number is listed on the Web site. 93 John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, Mar. 19, Staff Training 1998, attachment, "Response to Request Questions 1-3: Soon after the ADA became law, Department Staff Training (hereafter cited as Staff Training). of Justice staff and outside disability rights ad- 94 Ibid. 95 Bebe Novich, Trial Attorney, DRS, CRD, DOJ, interview vocates conducted initial training for staff who in Washington, DC, Apr. 15, 1998, p. 2 (hereafter cited as Novich interview); DOJ Comments, July 17, 1998, p. 2. 98 L. Irene Bowen, Deputy Chief, DRS, CRD, DOJ, interview 87 DOJ, "Attorney General Reno Requests Increased Fund- in Washington, DC, Apr. 14, 1998, p.2 (hereafter cited as ing in FY 1999 to Continue Enforcing the Americans With Bowen interview). Disabilities Act," Press Release 98-045, Feb. 3, 1998, p. 1. 97 Ron Whisonant, Investigator, DRS, CRD, DOJ, interview in Washington, DC, Apr. 15, 1998, p.2 (hereafter cited as 88 Ibid. Whisonant interview); Robb Wolfson, Investigator, DRS, 89 Ibid., p. 2. CRD, DOJ, interview in Washington, DC, Apr. 15, 1998, p. 2 90 . (hereafter cited as Wolfson interview). See also Novich in- 91 . terview, p. 2. 92 Ruth Lusher, Supervisor of Technical Assistance Program, 98 Whisonant interview, p. 2; Wolfson interview, p. 2. DRS, CRD, DOJ, Response to Questions, April 1998, p. 3. Whisonant interview, p. 2.

23 ADA training is an ongoing process. Whenbe updated, and (3) discovery updates, which the toll-free ADA information line was estab- look at the ADA laws and rules.105 lished in early 1994 and new technical assis- The effectiveness of training for DRS staff is tance staff were hired, two 3-day training ses-evaluated through written or oral feedback.'06 sions were held. These sessions covered titles II One DRS trial attorney indicated the training and III of the ADA, other disability rights laws,that DRS provides to its attorneys generally is procedures for handling information line calls,"more than adequate" for them to perform their and resources available from Federal, regional, jobs effectively. However, she believes the Sec- or State agencies. '°° tion could benefit from providing attorneys more Training is a high priority and is based on stafftraining to enhance their litigation skills.107 Cur- needs.'°' The Disability Rights Section periodi-rently, very little training, formal or informal, is cally holds training for its staff and the staff of theprovided for litigation.' °8 U.S. attorneys' offices. Investigators, technical DRS architects provide training on the ADA assistance staff, and new attorneys have partici-standards and how they are applied, to other pated in a 3-day session on titles II and III. Attor-DRS staff members, inspectors, other architects, neys are given training when they become part ofand builders.m9 Architects also work in the areas the DRS staff.102 Two days of training on all titlesof technical assistance and certification.' 0 of the ADA for U.S. attorney office staff was provided by DRS staff. In addition, EEOC staff pro- Past Performance vided 2 days of training on title I for all DRS staff. The Disability Rights Section is the newest DRS staff also sends several attorneys to at- component of the CRD. Created in 1995, it was tend the District of Columbia Bar Association'sthe Attorney General for Civil Rights' response annual ADA Enforcement and Compliance Up-to the public's call for a section devoted to en- date. These 1-day training sessions, conducted by forcing titles II and III of the American with members of the DC Bar and DRS, focus on keep- DisabilitiesAct,andhisreorganizationto ing attorneys abreast of recent court rulings andstrengthen the Coordination and Review's title continuing to build their litigation skills.'03 In ad- VI efforts.111 dition, individual staff members pursue outside The Disability Rights Section was not created training opportunities on a continuing basis, under ideal conditions. Staff were assigned from through bar organizations, other professional or-other sections, primarily the Coordination and ganizations, and private training providers.104 Review Section, 112 which affected that Section's Continuous training also takes place throughability to carry out its responsibilities. Further- unit, team, and staff meetings. For example, themore, DRS inherited both a large number of technical assistance/ADA information line staffcomplaints and pending inventory to be ad- meet twice monthly for training and discussiondressed by a relatively small staff. Almost im- of ADA requirements and information line pro-mediately after the passage of the ADA, the cedures. DRS staff also are provided with other CRD began ADA investigations in 1,168 cases internal forms of training such as (1) team and litigation in 5 cases during fiscal year 1993. meetings to discuss the status and development of the ADA law, (2) discussions on what needs to 1°5 Allison Nichol, Deputy Chief, DRS CRD, DOJ, interview in Washington, DC, Apr. 14, 1998, p. 2 (hereafter cited as Nichol interview). 106 Staff Training. 107 Novich interview, p. 2. 100 Staff Training. 108 Ibid. 101 Renee Wohlenhaus, Deputy Chief, DRS, CRD, DOJ, in- 109 Ellen Harland, Architect, DRS, CRD, DOJ, interview in terview in Washington, DC, Apr. 14, 1998, p.2 (hereafter Washington, DC, Apr. 14, 1998, p. 2 (hereafter cited as cited as Wohlenhaus interview). Harland interview). 102 Bowen interview, p. 2. 110 Ibid. 103 Staff Training. 111 See USCCR, Title VI Enforcement, pp. 62,134. 104 Ibid. 112 See ibid., pp. 62-63.

24 These complaints were handled within the Coor- 350 professional mediators in 42 States had re- dination and Review and the Public Access sec- ceived ADA training and were mediating com- tions until DRS was created.113 Because of other plaints referred by DOJ on a pro bono basis.120 responsibilities, the Coordination and ReviewApproximately 90 percent of DOJ's ADA com- Section could not address the ADA complaints plainants have opted for mediation, and 82 per- effectively.114 cent of these complaints have been mediated Due to insufficient resources and staff, the successfully.121 number of completed investigations has de- Another major area in ADA enforcement is creased since fiscal year 1994. In addition, thetechnical assistance,including outreach and pending inventory rose from 980 in fiscal year education activities. To carry out its technical 1993 (before DRS) to 1,850 in fiscal year 1994.115 assistance responsibilities, the DRS has dis- For fiscal year 1995, CRD requested an addi- seminated numerous technical assistance docu- tional 10 full-time staff for DRS. However, thements, operated an information telephone line, final appropriation reduced DRS staff by 12, and used technology to get information on the leaving DRS with 46 full-time employees, 2 ADA to the public.122 fewer than in fiscal year 1994.116 The fiscal year The accomplishments of DRS are positive 1996 budget did not request any additional staffsigns that CRD is making strides in its enforce- for the Section. ment of the ADA. The DRS Section Chief has CRD estimates that as a result of DRS' lim-stated that, on the whole and considering the ited resources, the number of ADA investiga- limited resources, DRS has established a broad- tions will continue to decrease, while the pend- based, strong enforcement program that is being inventory of complaints will increase.117 Be- ginning to improve conditions and remove barri- cause of the volume of complaints and limiteders for people with disabilities in their everyday investigative staff, DRS does not open all ADAlives.123 The Section Chief also stated that to ad- complaints forinvestigations.118 CRD isat- dress a wide range of issues that surface tempting to address some of these problems. In a throughout the nation, DRS enforces the ADA by report released in 1997, the National Council on handling a mix of large-scale, precedent-setting Disability reported that the CRD is working with cases and smaller scale, community- or individ- U.S. attorneys nationwide on ADA enforcementual-type cases.124 According to the DRS Section and is using its mediation program in the ADAChief, DRS has enforced the ADA by: (1) partici- complaints process.116 By 1997 approximately pating in litigation to gain access to emergency 911 services for persons with hearing impairments, (2) acting to ensure equal employment for 113In fiscal year 1994, DRS had 48 staff members. USCCR, persons with disabilities by concentrating on Funding Federal Civil Rights Enforcement, p. 34. precedent-setting issues, (3) challenging job re- 114"The Public Access Section had no non-ADA responsibil- quirements in cases involving an emergency ity. The reorganization transferred disability rights responsibilities (and some staff) from the Coordination and Review medical technician with hearing loss and a fire- Section and the Employment Litigation Section to the Pub- fighter with monocular vision, (4) intervening in lic Access Section, which was then renamed to reflect the litigation against the City and County of Denver fact that nearly all of the Civil Rights Division's disability and the Denver Police Department regarding its rights responsibilities would be handled by this Section. The primary reason for the change was to free Coordination and pattern and practice of employment discrimina- Review Section resources to coordinating the enforcement of tion against persons with disabilities, and (5) other civil rights statutes (e.g., title VI and title IX) by Fed- providing consultation to CRD's Appellate Sec- eral agencies." DOJ Comments, July 17, 1998, p. 2. 115USCCR, Funding Federal Civil Rights Enforcement, p. 1997), p. 31 (hereafter cited as NCD, National Disability 34. Policy: A Progress Report). 116 Ibid., p. 35. 120Ibid., p. 32. 117Ibid. 121Ibid. 115Wodatch interview, p. 5. 122Ibid, p. 31. 113National Council on Disability, National Disability Pol- 123Wodatch interview, p. 2. icy: A Progress Report: July 26, 1996-October 31, 1997 (Washington, DC: National Council on Disability, Oct. 31, 124Ibid. 15

25 tion in submitting amicus briefs, e.g., the Elev- 1993 (GPRA):139 to administer programs effec- enth Circuit Court of Appeals in a case chal- tively and focus on outcomes.131 lenging the applicability of title II to public em- The plan is structured according to DOJ's ployment.125 major responsibilities, rather than by its bu- DRS also has handled cases based on whatreaus, divisions, offices, and other components. the Section Chief referred to as "right to citizen These responsibilities include: participation." These cases have involved issues Investigating and prosecuting criminal of- such as accessibility of town halls, courthouses, fenses and other municipal buildings, jury service, and Assisting State and local governments police treatment of persons with disabilities. Al- Enforcing Federal laws (including civil rights though the Department's Appellate Section han- statutes) and defending the Nation's interests dles cases in Federal courts of appeal in which Administering immigration laws fairly and the constitutionality of the ADA is challenged by effectively State and local governments, DRS also has spent Protecting society by confining detainees and a significant amount of time working in this area prisoners in safe and secure environments by providing support to the Appellate Section Administering the judicial system at the Fed- and defending the constitutionality of the ADA eral, State, and local levels in district court cases.126 Efficiently managing endeavors related to DRS also has sought to enforce the ADA by law enforcement, legal representation, and opening doors of opportunity for persons with immigration132 disabilities. For example, DRS has obtained con- For each of these major responsibilities, the sent decrees in cases involving companies thatplan outlines several goals, strategies to accom- provide exam preparation courses,such asplish them, and indicators to measure their at- Bar/Bri, and has filed amicus briefs in cases tainment.133 For only a few of its responsibilities challenging mental health inquiries by profes-does DOJ establish goals that either allude to or sional licensing entities.127 explicitly address the needs of persons with disabilities. For instance, with respect to enforcing Strategic Planning Federal laws and defending the Nation's inter- U.S. Department of Justice ests, DOJ's first priority is to protect the civil The DOJ strategic plan for 1997-2002 guidesrights of all Americans by promoting compliance the department's budget and sets forth DOJ'swith the civil rights laws.134 To secure the civil mission, long range goals, strategies for meeting rights of all Americans, DOJ intends to protect goals, and indicators to measure performancelaws and programs that promote opportunity for during the next several years.128 Attorney Gen-"traditionally excluded individuals," recruit the eral Reno indicates that the plan is a "livingsupport of State attorneys general in enforce- document" and that the Department intends to ment actions, and strengthen relations with modify and update it based on ongoing com-other Federal agencies that enforce major civil ments and feedback from Congress and the pub- rights statutes.135 DOJ stresses that a major lic.129 The strategic plan reflects the mandate ofelement of its strategic planning process is on- the Government Performance and Results Act ofgoing evaluation of its major programs and ini-

130 Pub. Law. No. 103-62, § 2, 107 Stat. 285, 285 (1993) (codified at 31 U.S.C. §115 note (1994) (Congressional Findings and Statement of Purposes)). 125 Ibid. 131 DOJ, Strategic Plan 1997-2002, Message from the Attor- 126 Ibid. ney General and p. 1. 127 Ibid., pp. 2-3. 132 DOJ, Strategic Plan 1997-2002, pp. 7-25. 128 DOJ, Strategic Plan 1997-2002, Message from the Attor- 133 Ibid. ney General and p. 1. 134 Ibid., p. 12. 129 Ibid. 135 Ibid.

26 tiatives.136 DOJ's Office of the Inspector GeneralDisability Rights Section will assess performance.137 The Disability Rights Section obtained the DOJ's strategic plan includes a summary ofassistance of disability and civil rights groups to resources, systems, and processes that are criti- develop a strategic plan.140 In its plan, DRS ex- cal to goal achievement and a somewhat briefplicitly addresses ADA title II's goals and objec- description of how its goals and objectives will be tives.141 The plan's six priorities, in summary, achieved. DOJ does not (1) address key externalare: factors that could affect achievement of these Ensure that new construction of public facili- goals, (2) provide a description of how program ties covered under the ADA is in compliance evaluations will be used in establishing goals, or with title II (as well as title 111)142 (3) provide a schedule of future program evalua- Challenge policies and eligibility criteria that tions in its strategic plan. These factors were exclude individuals with disabilities from supposed to be included in all Federal agencies' programs and services strategic plans. Litigate basic issues related to reasonable accommodations Civil Rights Division Undertake an active amicus program to as- CRD's most recent mission and goals state- sist in defining key statutory terms, such as ment includes more direct references to persons "individual with a disability," "undue hard- with disabilities. CRD's overall mission is: ship," and "fundamental alteration" Monitor Federal agencies' enforcement of To vindicate the constitutional and Federal rights of ADA's title II and section 504 persons who have been subjected to discrimination on Partner with Federal, State, and local agen- the basis of race, color, gender, disability, religion, familial status, and national origin; and in so doing, cies, as well as the general public, to ensure to deter others from engaging in discrimination.138 the broadest possible enforcement of laws that protect individuals with disabilities from CRD's six general goals, in summary, are: discrimination143 Reduce police and other official criminal misconduct, and eliminate violent activity by pri- Title II Implementation, Enforcement, vate citizens and Compliance Activities Prevent or eliminate barriers to full partici- Regulatory and Policymaking Functions pation in the electoral process Regulations Eliminatediscriminationinemployment, The ADA required the U.S. Attorney General credit transactions, and housing and educa-to develop and announce final regulations on tional opportunities title II, subtitle A, within 1 year of the ADA's Protecttheconstitutionalandstatutoryenactment,144 and on July 26, 1991, DOJ issued rights of institutionalized individuals the implementing regulations.145 The regulations Ensure that public services, programs, and activities are accessible to persons with dis- 149 DOJ September interview, p. 4; DRS June 3, 1998, Re- abilities sponse, pp. 3-4. Eliminateimmigration-relateddiscrimina- 141 John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick tory employment practices139 D. Isler, Assistant Staff Director, OCRE, USCCR, Mar. 19, 1998, attachment, "Subject: Disability Rights Section Strategic Plan, DRS Response to Request for Documents No. 4 (hereafter cited as Disability Rights Section Strategic Plan). 142 DRS priority issues on building construction/alterations led to a program in which staff determine where construc- 136 Ibid., p. 30. tion is occurring and ensure that ADA requirements are 137 Ibid., p. 31. The Office of the Inspector General also does satisfied. See DOJ September interview, p. 4. special reviews at the request of senior DOJ officials or Con- 143 Disability Rights Section Strategic Plan. gress. Ibid., pp. 31-32. "4 42 U.S.C. § 12134(a) (1994). 138 CRD Performance Plan as Mandated by GPRA. 146 Nondiscrimination on the basis of disability in State and 139 Ibid. local government services, 56 Fed. Reg. 35,716 (1991) 17 are divided into seven subparts. Subpart A de-in civil rights statutes; and establishes a com- scribes the purpose and application of the ADA, plaint mechanism for resolving allegations of as well as its relationship to other laws.148 It also discrimination.154 provides definitions of key terms used in the One final, significant point is that the title II ADA, and establishes requirements for notice,regulations state that designated agencies, in- self-evaluation, and the adoption and publicationcluding DOJ, must investigate and attempt to of grievance procedures for public entities with resolve every complaint received.155 DOJ officials 50 or more employees.147 Subpart B discusses acknowledge that they do not investigate every subjects such as the ADA's general prohibitioncomplaint and are considering amending the against discrimination, illegal use of drugs, re- regulations to eliminate this requirement.156 taliation, maintenance of accessible features, The regulations and the accompanying sec- and personal devices and services.148 Subpart Ction by section analysis are comprehensive and discusses the ADA's prohibition against em- clear. They provide specific guidance about offi- ployment discrimination.149 Subparts D and E cial DOJ policy on issues not specifically ad- establish ADA requirements for program acces- dressed in the statute itself, such as the applica- sibilityand communications,respectively.159 bility of title II to public employment.157 This Subpart F sets forth the compliance proceduresvery specificity, however, has led some Federal that must be followed under title II.151 Subpartdistrict courts to disagree with DOJ policy as G lists the Federal agencies that, in addition toextending too far from the intended scope of title DOJ, have designated investigative and en-II. For example, in several public employment forcement responsibility for particular title IIcases filed under title II, courts have ruled that State and local government compliance issues.152 title II does not apply to employment.158 The DOJ's title II, subtitle A, regulation adopts"flow of precedent," however, has been to find the prohibitions of discrimination based on dis- that title II does encompass employment disability that were established under section 504 of the Rehabilitation Act of 1973 and extends them to protect disabled individuals who participate in State and local activities that do not re- 154 Id. §§ 35.104, 35.130, 35.170 (1997). ceive Federal financial support.153 Furthermore, 156 Id. § 35.172 (1997). This requirement applies to each the regulation implements standards to deter- "complete complaint." Id. This is defined as a written, signed mine the presence of discrimination on the basis statement that contains the complainant's name and ad- of disability; defines "disability," "qualified indi- dress and describes the alleged discriminatory action in viduals with a disability," and other terms used sufficient detail to inform the agency of the nature and date of the violation. Id § 35.103. 156 DRS Staff, DOJ, interview in Washington, DC, November (codified at 28 C.F.R. pt. 35 (1997)). Title II, subtitle A, 3, 1997, p. 4. regulations are not limited in coverage to State and local 157 See, e.g. 28 C.F.R § 35.140 (1997). "executive" agencies. Rather, they apply to the activities of 158 In Decker v. Univ. of Houston, 970 F. Supp. 575 (S.D. the judicial and legislative branches of State and local gov- Tex. 1997), the plaintiff, a tenured college professor, filed an ernments as well. See 28 C.F.R. §§ 35.102(a), 35.105 (28 employment discrimination claim under title II. The court C.F.R. Part 35 applies to public entities; public entity means held that the plain language of 42 U.S.C. § 12132 providing any instrumentality of a State or States or local govern- that "no qualified individual with a disability shall, by rea- ment) (1997). son of such disability, be excluded from participation in or be 146 28 C.F.R. §§ 35.101--.103 (1997). denied the benefits of the services, programs, or activities of 147 Id. §§ 35.104.107. a public entity" did not encompass employment claims. The court noted the lack of an explicit provision governing em- 148 Id. §§ 35.130.135 (1997). ployment discrimination and that the phrase "services, pro- 149 Id. §§ 35.140 (1997). grams, or activities," as a whole, "focuses on a public entity's 150 Id. §§ 35.149.151 (subpart D) (1977); Id. § 35.160.164 outputs rather than inputs." Id. at 578 (citing Bledsoe v. (1997). Palm Beach Soil and Conversation Dist., 942 F. Supp. 1439, 1443 (S.D. Fla. 1996)). In Iskander v. Rodeo Sanitary Dist., 151 Id. §§ 35.170-178 (1997). 1995 U.S. Dist. LEXIS 1620, No. C-94-0479--SC, at *24 152 Id. §§ 35.190 (1997). (N.D. Cal. Feb. 7, 1995), aff'd mem., 121 F.3d 715 (9th Cir. 153 Id. § 35.102 & app. A § 35.102 (analysis of § 35.102) 1997), the court held that title II was limited to "the ren- (1997). dering of services to the public by public entities."

18 crimination claims.159 This and other issues are subsequent cases, although DRS staff attempt to discussed in greater detail in the next chapter. provide consistent responses to similar inquiries. Technical and policy letters have been issued in Policy response to inquiries from members of Congress, DRS provides ADA guidance through regula-private organizations, State and local agencies, tions, arnicus curiae briefs, technical assistance and private citizens about provisions of the stat- materials, and policy letters that are written onute, as well as requests for clarification or inter- an ongoing basis as responses to inquiries about pretation of ADA provisions.163 the ADA.160 These methods of developing policy According to one DRS staff member, the big- do not provide an opportunity for disability ad- gest technical assistance issue where more guid- vocacy groups to participate in the process, ance needs to be provided is program accessibility. whereas if formal guidance documents, similarEven though the concept of program accessibility to those produced by the EEOC, were developedhas existed since the enactment of section 504 of and published the public could offer comment.161 the Rehabilitation Act of 1973,164 knowledge and Between 1990 and 1997, DOJ issued more thanunderstanding in this area are lacking, particu- 200 policy letters and 700 technical letters to larly in smaller towns where many title II entities assist and guide Federal agencies, State and lo-do not have sufficient staff to work on these is- cal governments, education officials, the disabil-sues.166 To address this gap, DRS has developed a ity community, and the general public on thegrant for small towns and another grant for title requirements and implementation of the ADA. II entities. DRS is also going to produce materials There is no real difference between the technical for small towns that are similar to the ADA guide and policy letters in terms of their importance or for small businesses, which should help small the deference they should be accorded nor aretowns become aware of DRS and other re- these letters binding on DOJ.162 Information sources.166 Often officials, from any size of local provided in response to one letter does not set government, argue that their lack of knowledge binding precedent that DOJ must follow in alland understanding is because no persons with disabilities live in their community.167

159 See, e.g., Bledsoe v. Palm Beach City Soil & Water Con- servation Dist., 133 F.3d 816, 820-25 (11th Cir. 1998) Coordinating and Monitoring Federal (relying on final clause of § 12132 which protects individuals Agencies' Enforcement Efforts from being "subjected to discrimination by any [public] en- DRS has oversight and coordination respon- tity," ADA legislative history, DOJ implementing regula- sibilities for the seven executive agencies that tions and the "flow of precedent"). This decision, the only circuit court decision on point to date, reversed the decision DOJ's July 26, 1991, regulations on title II, sub- on which the Decker court relied. For an extensive list of part A, authorized to enforce title II compliance decisions holding that employment discrimination claims in the Nation's approximately 80,000 State and may be brought under title II of the ADA, see Bledsoe, 133 local governmental units.168 The U.S. Depart- F.3d at 820 n. 4. ments of Agriculture, Education, Health and 160 DRS Staff, DOJ, interview in Washington, DC, Sept. 3, 1997, p. 5; Wodatch interview, pp. 3-4. DOJ amicus curiae Human Services, Housing and Urban Develop- briefs, technical assistance materials and policy letters are ment, Interior, Labor, and Transportation are discussed in greater depth in chaps. 3 and 4. charged with investigating and resolving com- 161 Wodatch interview, p. 4. 162 Breen interview, p. 2. DRS notes that staff respond to inquiries received from Congress and members of the public. 163 See DOJ Title II/ADA Policy Letters and Title II/ADA These letters are not officially referred to as "policy" or Technical Letters, 1990Present. "technical" letters. The letters referred to throughout this 164 Jim Bostrom, Architect, DRS, CRD, DOJ, interview in report as "policy" letters are those that are identified by the Washington, DC, Apr. 16, 1998, p. 2. Civil Rights Division's Freedom of Information Act (FOIA) 165 Ibid. office as "core letters." They represent the letters in which a question was addressed for the first time. The letters re- 166 Ibid. ferred to in this report as "technical" letters are those that 167 Ibid. are not "core" or "policy" letters. None of these letters repre- 168 56 Fed. Reg. 35,694, 35,715-46,722-23 (1991) (codified at sents a binding legal interpretation of the ADA. See DOJ 28 C.F.R. § 35.190); USCCR, Funding Federal Civil Rights Comments, July 17, 1998, p. 2. Enforcement, p. 25.

29 plaints of discrimination on the basis of disabil- DRS acts as a clearinghouse for complaints ity in State and local governments' programs, under title II by determining which designated activities, and services.169 DOJ designated these agency should investigate a given complaint and seven agencies in particular, rather than allreferring the complaint to that agency. Referrals Federal agencies that administer financial assis- are made by DRS civil rights program specialists tance programs, because the Department con-who may also provide advice and support to the sidered them to have the largest civil rights designated agency involved. DRS staff request compliance staffs and the most experience inthat each designated agency notify DRS when complaint investigations and disability issues.170 cases are resolved.173 DOJ assigns these Federal agencies title II en- The preamble to the title II, subtitle A, regu- forcement responsibilities for particular Statelations states that the use of delegation agree- and local agencies based on their respective ma- ments reduces duplication of efforts and thereby jor functions.171 Therefore, the agencies investi- strengthens overall civil rights enforcement.174 gate and resolve complaints of alleged violationsAside from this provision, however, Congress did of the ADA related to their substantive areas ofnot address the overlapping responsibilities of concern.172 Federal agencies when designing the ADA. For example, some public entities, such as residential treatment centers, must comply with both 168 28 C.F.R. § 35.190 (1997). the Fair Housing Act and the ADA. In addition, 170 Id., pt. 35, app. A § 35.190 (1997). Some of the designated the Department of Housing and Urban Devel- agencies are "well staffed," such as the Departments of Edu- cation, Health and Human Services, and Housing and Ur- opment has enforcement responsibilities under ban Development. In contrast, at agencies such as the De- both of these laws.175 Under title II, DRS does partment of Interior, civil rights enforcement responsibili- not have independent authority to handle cases ties are handled by only two staff persons. See DRS Staff, under the purview of the designated agencies DOJ, interview in Washington, DC, Nov. 6,1997, p. 5 (Statement of John Wodatch). and it must first get a referral from an agency to 171 28 C.F.R. pt. 35, app. A § 35.190 (1997). The division of take on a case.176 However, the agencies have responsibilities is made functionally rather than by the name not referred many cases to DRS.177 Although of the public entities. For instance, all State and local agencies DRS staff have expressed uneasiness about (regardless of their names) that administer, implement, or changing the ADA, eliminating the requirement regulate services or programs relating to lands and natural resources fall within the Department of Interior's jurisdiction. for a referral from the designated agencies 28 C.F.R. pt. 35, app. A § 35.190 (1997). would be one change that could improve the 172 DRS Staff, DOJ, interview in Washington, DC, Sept. 3, ADA.178 ADA enforcement might be improved by 1997, p. 4. These agencies also have substantial responsibili- eliminating the designated agencies' responsi- ties for enforcing section 504. See 56 Fed. Reg. 35,695 bilities under the ADA and centralizing all en- (1991). The Federal agencies ensure title II, subtitle A, com- forcement duties within DRS, however, at pres- pliance in the State and local governments that administer programs and services in the following functional areas: (1) U.S. Department of Agriculture: Farming and the raising (6) U.S. Department of Labor: Labor and the work force of livestock, including extension services. programs, services, and regulatory activities. (2) U.S. Department of Education: Education systems, ele- (7) U.S. Department of Transportation: All transportation mentary and secondary schools, institutions of higher educa- programs and activities, including highways, public trans- tion (other than health-related schools), and libraries. portation, traffic management (nonlaw enforcement), auto- (3) U.S. Department of Health and Human Services: Schools mobile licensing and inspection, and driver licensing. See 28 of medicine, dentistry, nursing, and other health-related C.F.R. § 35.190 (1997). schools; health care and social service providers and institu- 173 DRS June 3, 1998, Response, pp. 12-13. tions, including "grass-roots" community services organiza- 174 28 C.F.R. pt. 35, app. A § 35.190 (1997). tions and programs; and preschool and daycare programs. 175 24 C.F.R. § 100.1 (1997); 28 C.F.R. § 35.190(b)(4) (1997); (4) U.S. Department of Housing and Urban Development: Blizard interview, p. 2. State and local public housing, and housing assistance and referral. 176 28 C.F.R. 35.174 (1997) (referral to Attorney General by designated agency when voluntary compliance negotiations (5) U.S. Department of Interior: Lands and natural re- are unsuccessful). sources, including parks and recreation, water and waste management, environmental protection, energy, historic and 177 Wodatch interview, p. 6. cultural preservation, and museums. 178 Ibid. 20

30 ent, DOJ and DRS do not have the resources totion on a number of issues, and DRS also issues assume these responsibilities.179 DOEd policy guidance and interpretations peri- DRS staff acknowledges it could improveodically. DOEd has found these approaches to be ADA enforcement through better communication effective.186 An official at the Department of Labor and information sharing with the designated(DOL) states that generally their contacts with agencies.180 Once a month a coordination meet-DRS have been informal, although DRS has been ing, which involves the designated agencies, is helpful in assisting DOL in determining jurisdic- held at EEOC.181 Currently, communication oc- tion in complaints and providing guidance in curs almost exclusively between DRS' coordina-processing and investigating complaints that pre- tion staff and one or two designated agency con-sent new or novel issues.187 tact persons. Expanded communication between DRS staff reports that monitoring and evalu- the respective enforcement staffs could fosterating the designated agencies' resources devoted information sharing and referral of cases.182 Forto ADA enforcement efforts is difficult, because example, DRS enforcement staff recently in- these agencies do not maintain separate budgets formed Department of Transportation (DOT)for this statute.188 Only a small percentage of staff that they could get compensatory damagescases that DOJ has referred to other Federal in ADA cases. It appears DOT staff previouslyagencies have been closed, and DOJ does not were not aware of this authority.183 require the recipient agencies to provide feed- Many accessibility complaints fall under theback on the referred cases until they are jurisdiction of the designated agencies. For ex-closed.189 In addition, DOJ does not record or ample, complaints about school building accessi-track ADA complaints that are received directly bility are investigated by the Department ofby other Federal agencies (i.e., cases not referred Education. One DRS architect said she is un-to other agencies by D0J).190 The lack of avail- aware of any instances when staff from the De-able information on title II complaints filed with partment of Education or any of the other desig-designated agencies other than DOJ or the nated agencies have contacted DRS architectsagencies' enforcement activities has prompted for advice or assistance on building accessibilitythe California Department of Rehabilitation to complaints.I84 conclude that "apparently no oversight by DOJ One official at the Department of Education of the enforcement activities of the other 11 Of- (DOEd) has expressed satisfaction with the inter-fices of Civil Rights charged with enforcement action with DRS, stating that "DRS has been re-occurs. We say this because we have no informa- sponsive to all of our requests for consultation ontion available from those entities regarding what any given issue, including meeting with our staffkinds of enforcement activities they have under- as the need arose, consulting with staff over the taken."191 Overall, most coordination with other telephone on an as-needed basis, and sharing informational materials."185 In monitoring and coordinating DOEd's enforcement activities, DRS 186 Ibid., pp. 1-2. participates in monthly meetings to discuss em- 187 Annabelle T. Lockhart, U.S. Department of Labor, letter to Frederick D.Isler, Assistant Staff Director, OCRE, ployment-related disability issues. The Director of USCCR, Apr. 23, 1998, Response to letter of March 18, 1998, DRS and his staff have been involved in consulta- p. 1. 188 DRS Staff, DOJ, interview in Washington, DC, Nov. 6, 1997, pp. 4-5 (statement of Elizabeth Savage, Counsel to 179 Ibid. Acting Assistant Attorney General for Civil Rights). 180 Ibid., p. 7. 189 DRS Staff, DOJ, interview in Washington, DC, Sept. 3, 181 Nichol interview, p. 4. 1997, pp. 4-5. 182 Novich interview, p. 4. 199 Ibid., p. 5. 183 Wodatch interview, p. 7. 191 Michelle Martin, Staff Services Analyst, Department of 184 Harland interview, p. 3. Rehabilitation, State of California Health and Welfare Agency, letter to Nadja Zalokar, Director, Americans with 185 Eileen Hanrahan, U.S. Department of Education, letter to Frederick D.Isler, Assistant Staff Director, OCRE, Disabilities Act Project, USCCR, May 11, 1998, attachment, USCCR, Apr. 3, p. 12 (hereafter cited as Martin letter). The Department of 1998, Response to letter of March 18, Rehabilitation added, "Many of the calls we receive on the 1998.," p. 1 (hereafter cited as Hanrahan response). technical assistance line concern access and equal treatment 21

31 agencies on title II issues occurs informally (e.g.,dation and commercial facilities."196 Under sec- through telephone contact); no memoranda oftion 308 of the ADA, DOJ is authorized to cer- understanding or guidelines on coordinationtify, after a public hearing, that these State and have been issued to date.192 DRS staff believeslocal building codes meet or exceed ADA Stan- the title II regulations assign responsibilities todards for Accessible Design.197 In performing specific agencies and this should serve in placethis responsibility, DRS staff advise State and of a memorandum of understanding.193 However, local officials on strategies to make their build- if an agency is about to issue a Letter of Finding ing standards on par with the ADA.198 that seems "ground breaking," generally it will The process of certification requires that DRS consult with DOJ.194 staff analyze each submitted code thoroughly, provide public notice, and hold public hearings on Certifying State and Local Building Codes the proposed certification.199 On May 20, 1993, Under title II of the ADA, State and local DOJ responded to its first request for certification governments must follow specific architecturalof a State's building accessibility codes.299 DOJ standards in new construction and alteration ofprovided the State of Washington with a "side by their buildings and must relocate programs or remove barriers from inaccessible older facili- 196Deval Patrick, Assistant Attorney General, CRD, DOJ, ties.195 The ADA permits but does not require letter to Sen. Mark Hatfield, re: Building Code Certification State and local governments to apply to the As- (Equivalency to the ADA), May 16, 1995, reprinted in 8 Nat'l sistant Attorney General for Civil Rights for Disability L. Rep. (LRP) ¶ 33. 19742 U.S.C. § 12188(b)(ii) (1994); John Wodatch, Chief, "certification that their building codes meet or DRS, CRD, DOJ, letter to Frederick D. Is ler, Assistant Staff exceed minimum ADA requirements for accessi- Director, OCRE, USCCR, Mar.19,1998, attachment, bility and usability of places of public accommo- "Response to Request for Documents No. 1," p. 2; see also DOJ September interview, p. 2. The certification procedure was established as part of the enforcement mechanism for title III to facilitate implementation of the new construction in education and transportation. We routinely give out the and alteration requirements applicable to public accommo- number for the enforcement offices of those agencies, yet no dations and commercial facilities. Construction in compli- statistics are available on the number of complaints re- ance with a certified code may be offered as evidence of ceived, considered to have merit, or resolved." Ibid. compliance with title III in an ADA enforcement hearing.

192DRS Staff, DOJ, interview in Washington, DC, Nov. 6, Code certification has no legal significance for new construc- 1997, p. 2 (statement of Ruth Lusher, Technical Assistance tion or alterations under title II. DOJ Comments, July 17, Program Manager). In 1994, DOJ and EEOC jointly pub- 1998, p. 3. lished guidelines on the coordination of complaints con- 199DOJ/CRD, ADA Quarterly Status Report (January-March cerning employment discrimination under the ADA and 1997), p. 8. The DRS staff also represent the Attorney Gen- section 504 of the Rehabilitation Act of 1973 that may fall eral in her statutory role as a member of the U.S. Architec- within the jurisdiction of more than one agency. See 29 turaland TransportationBarriersComplianceBoard C.F.R. §§ .1640.1-1640.13 (1997). (Access Board), which allows the Section to contribute to the 193Blizard interview, p. 2. development of ADA building and facilities accessibility guidelines for the entities subject to the Department's 194DRS Staff, DOJ, interview in Washington, DC, Nov. 6, regulations and all federally financed buildings. CRD Per- 1997 p. 2 (statement of Janet Blizard, Supervisory Attor- formance Plan as Mandated by GPRA; 29 U.S.C. § 792(a) ney). (1994) (Attorney General is DOJ representative on Access 19528 C.F.R. §§ 35.149.151 (1997); DOJ/CRD, Guide to Board). Disability Rights Laws, p. 3. Public entities are not required The ADA Standards for Accessible Design apply to new con- to make each of their existing facilities accessible. See id. § struction and alterations, and can also be used to determine 35.150 (1997). According to DOJ and EEOC, removal of the appropriate types of barrier removal in completed facili- physical barriers, such as stairs, from all existing buildings ties. See John Wodatch, Chief, DRS, CRD, DOJ, letter to is not required by ADA, title II, as long as programs and Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, services are made accessible to individuals who cannot use Feb. 6, 1988, attachment, "Subject: Mission and Functions "inaccessible existing facilities." State and local governments StatementsResponse to Request for Documents No. 5," p. can make programs accessible by altering existing facilities; 6. DRS' participation in the development of ADA Standards acquiring or constructing additional facilities; or relocating a for Acceptable Design requires that the Section staff use service or program to an accessible building, including an innovative methods to solicit comments from corporations, individual's home. Similarly, a State or local entity can pro- governments, architects, and the disability community. vide an aide to assist a disabled persc,n in obtaining services. See id. § 35.150(b) (1997); EEOC e;icl DOJ, ADA Questions 199CRD Performance Plan as Mandated by GPRA. and Answers, p. 18; and DOJ/CRD, Title II Highlights, p. 3. 200DOJ/CRD, ADA Status Report (Apr. 4, 1994) p. 13. 22

32 side" analysis of its building standards relative toties throughout the Nation.210 In addition, DRS those of the ADA, and indicated areas of minorexpects that its code certification provision will discrepancy between Washington's codes and the increase the number of buildings constructed in ADA Standards for Accessible Design 201 DOJ compliance with the ADA's Standards for Accessi- considered Washington'sfacilityaccessibilityble Design and thereby avoid "costly litigation."211 codes to be "very progressive" but not quite on par with the ADA.202 In July 1994, DOJ informed theComplaints Processing Procedures State of Washington that the Department's analy- Under the ADA, individuals who believe that sis revealed a few remaining areas in which thethey have been subjected to discrimination on State's codes were not fully equivalent to the ADA the basis of disability by a public entity such as a standards.203 DOJ stated that once the State cor-State or local government agency are entitled to rected the gaps, the State of Washington wouldfile a complaint within 180 days from the alleged receive a preliminary certification of its building discriminatory action.212 DOJ considers a title II codes.204 The State of Washington, in turn, noti- complaint filed on the date it is first filed with fied DOJ that by November 1994, it expected to any Federal agency.213 A "complete complaint" is modify the facility standards in the areas identi-a written statement that contains the aggrieved fied by the Department.205 On March 29, 1995,individual's name and address, as well as a de- DOJ certified that the Washington State Regula-tailed description of the public entity's alleged tions for Barrier Free Design met or exceeded thediscriminatory action.214 new construction and alteration requirements of DRS and the other designated agencies are the ADA.206 Similarly, before granting certifica-charged with receiving, processing, investigat- tion to the Texas Accessibility Standards, DOJing, and resolving complaints of alleged viola- issued a "preliminary determination" in Maytions under ADA title II, subtitle A.215 All com- 1996, requesting public comment on this provi-plaints must be in writing, unless an alternative sional certification, and scheduled a second hear- procedure is necessary as a "reasonable modifi- ing in August 1996.207 After public hearings werecation" for an individual with a disability; a per- held in Austin, Texas, and Washington, D.C., DOJ son cannot walk in to DRS' offices in Washing- issued its second State building code certificationton, D.C., and file a complaint.216 The Disability and declared that Texas' Building AccessibilityRightsSection has a standard ADA title Standards met or exceeded ADA requirements.208 II/section 504 complaint form that instructs in- As of May 1998, DOJ had determined that ac- dividuals who perceive that they have been dis- cessibility codes in Washington, Texas, Maine, criminated against by a public entity to provide and Florida are equivalent to ADA title III re-(a) their name and address and that of the al- quirements for new construction and altera-leged discriminating government entity or or- tions.209 DRS officials contend that certificationganization; (b) the date on which discrimination furthers the Federal objective of ensuring uniform occurred; (c) a description of the discriminating levels of accessibility for individuals with disabili- acts; (d) efforts (if any) made by complainant to resolve the claim through internal grievance 201 Ibid. 202 DOJ/CRD, ADA Quarterly Status Report (July-September 1999), p. 8. 210 CRD Performance Plan as Mandated by GPRA. 211 Ibid. 203 Ibid. 212 28 C.F.R. §35.170(a)(b) (1997). 204 Ibid. 205 Ibid. 213 Id. § 35.170(b). 214 Id. § 35.104. 206 DOJ/CRD, ADA Quarterly Status Report (January-March 1995), p. 9 215 DOJ/CRD, Title II Highlights; DOJ/CRD, A Guide to Disability Rights Laws, p. 3; DOJ September interview 207 DOJ/CRD, ADA Quarterly Status Report (April-June 1996), p. 10. (statement of Wodatch), pp. 2-3; DOJ/CRD, ADA Quarterly Status Report (January-March 1995), p. 3; USCCR, Funding 208 DOJ/CRD, ADA Quarterly Status Report (July-September Federal Civil Rights Enforcement, pp. 25, 34; CRD Perform- 1996), p. 9. ance Flail as Mandated by GPRA. 203 DRS June 3, 1998, Response, pp. 13-14. 216 Whisonant interview, pp. 2-3. 23

33 procedures of the public entity or organization;forcement program has a mix of large and small and (e) additional entities (if any), such as theimpact cases.223 DOJ or other Federal, State, or local civil rights agencies, to which the complaint was filed.217 If Mail Process an incomplete complaint is received and the When mail arrives at DRS, two support staff complainant does not comply with the requestmembers open and review it, record the informa- for additional information, the Civil Rights Divi-tion in the Correspondence Tracking System sion is entitled to close the complaint.219 (CTS) and distribute it.224 New complaints are Complaints raise concerns about jails, pris- distributed by State and placed in the intake file ons, and inmates; State licensing boards; effec-cabinet. Additional information on previously tive communications; access to police depart-received complaints is given to the person listed ments, town halls, courts, and other public pro-in CTS. If the complaint is already in the Case grams and facilities; emergency services; and Management System (CMS), then a staff mem- other issues.219 These issues are discussed fur-ber will update CMS and distribute the com- ther in chapter 3. plaint to the assigned person in CMS. Any mate- According to its Section Chief, DRS receivesrial relating to title II complaints that already more complaints than staff can handle and manyhave been referred to designated agencies goes complaints are not "opened" as cases to be inves-to a staff member. Policy requests, certification tigated.220 DRS tends to open more cases in-materials,interagencycorrespondence,and volving State and local government issues, be-regulatory issues are given to Certification and cause the Section is required to do so.221 The Sec- Coordination staff. Mail from Members of Con- tion Chief also said that he would like for staff togress is routed to the appropriate staff member, be able to respond to all complaints and men-logged in, and then distributed for a response. tioned the possibility of prioritizing complaintsReferrals from other agencies are given to the similarly to EEOC's categorized process to im- appropriate staff member to (1) enter into CMS, prove efficiency. He noted, however, that this(2) assign "DJ" (case) numbers, and (3) create a would require a change in the Department's im- fileand distributeto deputies according to plementing regulation for title II of the ADA.222teams. Deputies assign the matter to an attor- DRS staff have attempted to become more effi- ney, issue a right to sue letter or other closing, or cient in processing more complaints, but limitedreturn to the appropriate staff for additional in- resources are a continuing constraint. DRS has vestigation.225 fewer than 15 investigators to respond to com- Disability rights professionals have criticized plaints from the entire United States. AlthoughDRS for its inefficiency in responding to com- disability rights organizations have suggested plaints.226 Staff from 5 out of 10 federally funded that DRS should handle more high profile cases

and initiate more litigation against State and 223Ibid., p. 5.

local agencies, DRS' position is that a good en- 224Some correspondence, mostly related to ongoing private cases, is received over the Internet and is not recorded in CTS. This mail is reviewed and distributed for appropriate action by another staff member. Mail addressed to a par- 217DOJ, CRD, DRS, Title II of the Americans with Disabili- ticular person, except the Section Chief, is distributed to ties Act/ Section 504 of the Rehabilitation Act of 1973 Dis- that person without being recorded in the CTS. Requests for crimination Complaint Form (undated) (hereafter cited as technical assistance are given to the person in charge of DOJ/CRD, Title II Discrimination Complaint Form). technical assistance and priority mail or mail with court

21828 C.F.R. § 35.171(c)(2) (1997). captions are given to deputies or to the assigned attorney if the case is already in the case management system (CMS). 219CRD Performance Plan as Mandated by GPRA; DOJ September interview, pp. 2 and 4; DOJ November interview, 225John Wodatch, Chief, DRS, letter to Frederick D. Isler, p.1; and DOJ/CRD, ADA Quarterly Status Report (April- Assistant Staff Director, OCRE, USCCR, Mar. 19, 1998, June 1997), pp. 3 and 7; and DOJ/CRD, ADA Quarterly attachment, "Subject: Complaints ProcessingDRS Mail Status Report (April-June 1996), p. 2. Procedure, DRS response to Request for Documents No. 1", pp. 1-2 (hereafter cited as Complaints ProcessingDRS 220Wodatch interview, p. 5. Mail Procedure). 221Ibid., p. 6. 226See, e.g.,Carl Suter, Associate Director, Office of Reha- 222Ibid., p. 5. bilitation Services, Illinois Department of Human Services, 24

34 disability and business technical assistance cen-complaint processing procedures are summa- ters (DBTACs) report that many individuals in rized below.231 their regions have complained about or even given up on DRS' complaint processing sys- Intake Process tem.227 Another advocate wrote the Commission When DRS receives a complaint, staff notifies that as of April 1998 his agency had not receivedthe complainant by postcard that DRS has re- a response from DOJ regarding a complaint filedceived the complaint.232 This postcard informs in 1995.228 the complainant that within 8-12 weeks DRS DRS staff has acknowledged that in the pastwill send additional information on the action they did not notify complainants that their cor-DRS has decided to take.233 If a complaint is respondence had been received or whether DRS"opened" for investigation, the complainant is would be acting on the complaint. In addition to informed and is asked to sign a Privacy Act re- the anxiety this caused complainants, it nega-lease. After this initial contact, DRS does not tively affected several areas within DRS. In par-keep the complainant informed of the progress of ticular, complainants often would call the infor-the investigation and negotiation.234 Although mation line to ask about the status of their com- the time varies, typically there is a delay of 4 to plaints, causing the workload of the phone op-8 weeks between the time DRS receives a com- erators to increase and interfere with their abil-plaint and when the complainant actually re- ity to respond to substantive questions.229 Toceives a response from DOJ.235 After the investi- increase efficiency, DRS staff began to review gation is completed, the complainant is informed the complaint processing procedures on a con- of how the complaint was resolved. tinuing basis. For example, approximately a year An investigator's typical caseload fluctuates and a half ago a new Supervisory Attorney forbetween 35 to 55 active cases. Investigators Investigation and the Supervisory Attorney forsubmit monthly reviews to the Supervisory At- Administration overhauled and streamlined in-torney for Investigation, informing her how soon take processing, which led to improvements in they anticipate closing cases. This helps the Su- the overall complaint processing procedure andpervisory Attorney monitor caseloads and de- reduced backlogs.230 The basic steps in DRS'termine whether investigators should be given additional cases.236 DRS investigators receive new complaints from their assigned States at least once a letter to Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, June 9, 1998, enclosure, pp. 2, 3 ("The ADA is limited mainly by the inability of those agencies responsible for enforcement to act in an expedient manner.. .The major policy issue is the slow manner in which ADA complaints are dealt with.") (hereafter cited as Suter letter). 231 Complaints ProcessingDRS Mail Procedure. 227 David Esquith, National Institute on Disability and Re- 232 DRS has temporarily stopped mailing postcard notices habilitation Research, U.S. Department of Education, inter- because some complainants were receiving the DRS review in Washington, DC, Jan. 8, 1998, addendum to inter- sponse to the complaint before the postcard. DOJ Com- view, Memorandum from Robin Jones to David Esquith, ments, July 17, 1998, p. 3. Jan. 6, 1998, pp. 2-5. 233 Eve Hill, Supervisory Attorney, Investigation, DRS, 228 Lawrence Berliner, General Counsel, Connecticut Office CRD, DOJ, interview in Washington, DC, April 14, 1998, p. of Protection and Advocacy for Persons with Disabilities, 2 (hereafter cited as Hill interview); Whisonant interview; letter to Frederick D. Is ler, Assistant Staff Director, OCRE, Wolfson interview, p. 3. USCCR, Apr. 20, 1998, p. 2 ("Our experience with DOJ has 234 Hill interview, p.3. DRS reviews all incoming com- been unsatisfactory. Agency personnel and consumers have plaints. From this review, DRS determines whether the filed complaints with the DOJ and do not receive letters of complaint should be opened for a more indepth investiga- confirmation or the results of any DOJ intervention. For tion. Generally, complaints that are not opened for further example, in one case filed in 1995. . .this agency has re- investigation are closed because they fail to state a claim, ceived no response from any DOJ official, to date. Conse- they are untimely, or the are already being reviewed by the quently we were forced to close the matter in the absence of agency with proper jurisdiction. DOJ Comments, July 17, any DOJ response in almost three years."). 1998, p. 2. 228 Wodatch interview, p. 5. 235 Whisonant interview, p.'3. 238 Whisonant interview, p. 1; Wolfson interview, p. 1. 238 Wolfson interview, p. 2; Whisonant interview, p. 4.

r, ho'N n on A . 35 week.237 The DRS staff member responsible for ney. If the U.S. attorney does not accept the intake reviews complaints, summarizes theircomplaint, the paralegal returns the complaint contents on intake cover sheets, and makes pre-to the Supervisory Attorney for Investigation for liminary recommendations for disposition.238 Areassessment. staff attorney reviews the recommendations made by investigators, updates CTS, and dis- Alternate Dispute Resolution/Mediation Process tributes the complaints to the appropriate staff If a complaint is referred to the mediation re- person. Recommendations involving requests for ferral process, the equal opportunity speciallitigation, such asainicusparticipation or inter-ist/program analyst checks to ensure that a me- vention in existing cases, are forwarded to the diator will be available and a release for referral Deputy Chiefs. Other documents are sent to the to mediation is sent to the complainant.242 If the Supervisory Attorney for Investigation.239 complainant returns the release, the respondent The Supervisory Attorney for Investigationis notified of the referral, and the complaint is reviews the staff attorney's recommendations. then referred to the Key Bridge Foundation for Deputy Chiefs further review title III recom- Education and Research. The Key Bridge Foun- mendations. If mediation is recommended, thedation is funded by a technical assistance grant complaint is sent to the Technical Assistancefrom the Department of Justice to train profes- Team. If further investigation is recommended, sional mediators on the requirements of the CTS is updated and the complaints are distrib- ADA who can then handle DRS cases. The foun- uted to support staff for: (1) entry in CMS, (2) dation has trained more than 400 mediators assignment of DJ (case) numbers, and (3) crea-from 42 States and the District of Columbia. All tion of case files. Another staff member thenmediators accepted into this mediation program generates a privacy release letter to be sent to must have the following minimum qualifications: the complainant. The complainant must sign Completion of an approved mediation train- and return this release letter before DRS will ing program conduct further investigation. Once DRS re- 2 years experience mediating disputes ceives a signed release form the case file is then Knowledge of the ADA returned to an investigator. Some cases are then Membership in a recognized (national or forwarded to the DRS staff attorney who super- State) professional dispute resolution organi- vises the U.S. Attorney referral process. Other zation243 cases are handled by investigators and DRS staff Other desired qualifications include prior experi- attorneys.240 ence mediating civil rights disputes and familiar- If the complaint goes through the U.S. attor- ity with disability issues and disabilities.244 ney referral process, the DRS staff attorney for- DRS staff does not directly mediate cases.248 wards the complaint to a paralegal who thenIf mediation resolves the complaint, the equal contacts the U.S. attorney.241 If the U.S. attorney opportunity specialist/program analyst closes the accepts the complaint, the paralegal then for- complaint, and CTS is updated to reflect the fi- wards the complaint to the Mail/Dockets staffnal disposition accomplished. If mediation does for: (1) entry into CMS, (2) the assignment of a DJ number, and (3) file creation. The paralegal then forwards the complaint to the U.S. attor- 242 Ibid. 243 John Wodatch, Chief, DRS, CRD, DOJ, letter to Freder- ick D. Isler, Assistant Staff Director, OCRE, USCCR, Feb. 6, 237 Complaints ProcessingDRS Mail Procedure, p. 2. Since 1998, attachment, "Preliminary Information Request for the April 1998, new complaints have been distributed to a staff Disability Rights Section, Subject: Complaints Processing, member who reviews and summarizes each new complaint Response to Question No. 1," p. 1 (hereafter cited as Com- and recommends a disposition. DOJ Comments, July 17, plaints Processing). To learn more about the process of me- 1998, p. 3. diating ADA complaints, individuals can examine the Key Bridge Foundation for Education and Research's brochure 238 Whisonant interview, p. 2. entitled "Want to Resolve Your ADA Complaint? Consider 239 Complaints ProcessingDRS Mail Procedure, p. 3. Mediation." 240 Ibid. 244 Complaints Processing, p. 1. 241 Ibid., p. 4. 248 Hill interview, p. 4.

36 not resolve the complaint, it goes back to the Su- conflicting parties to participate actively in the pervisory Attorney for Investigation for review. mediation process.251 Cases most suitable to the DRS staff refers cases to mediation to reducemediation process address issues such as barri- reliance on the formal investigation and litiga-ers to building access, lack of accessible parking, tion process.246 Mediation allows complainants todenied access to programs or services, lack of get results independently, without having toalternate formats of written materials, effective wait for DRS to navigate its case through litiga-communication (e.g., denial of interpreter serv- tion.247 DRS would not mediate in an area where ices or assistive listening devices), and modifica- DRS wants to set precedent or where there is a tion of policies.252 large imbalance of power between parties.248 Although DOJ is prepared to resolve title II Mediation is an informal process where an im-complaints and other ADA charges through liti- partial third party can expeditiously help con- gation, the Department attempts initially to set- flicting parties find mutually agreeable and sat- tle these discrimination cases through alterna- isfactory solutions to their differences and reach tive dispute resolution.253 DOJ's 1997-2002 Stra- a resolution, while avoiding the expense andtegic Plan explicitly mentions that the Depart- delay frequently associated with formal investi-ment intends to use alternative dispute resolu- gation and litigation.249 According to DOJ, me-tion where appropriate, to prevent litigation.254 diation brings parties together to (a) settle theirUnder title II of the ADA, DOJ is required to differences through "discussion and problem-negotiate a resolution of complaints before solving," and (b) achieve "win-win" solutions starting litigation. Alternative means of dispute rather than compromise.250 resolution, such as mediation and settlement To determine which specific title II and titlenegotiations, are encouraged to resolve claims III cases to refer to mediation, DOJ considersthat allege public entities discriminated on the the nature of the complaint, the availability of abasis of disability.255 As a result, many title II participating mediator in the complainant's gen-claims of discrimination have been resolved eral geographic location, and the ability of the through these informal methods.256 During 1998,

246 DOJ/CRD, A Guide to Disability Rights Laws, p. 3; CRD Performance Plan as Mandated by GPRA; DOJ, "ADA Me- diation Program," Aug. 14, 1997, p. 1 (hereafter cited as DRS, "Description of Mediation"). From the start of the mediation 251 DRS, "Description of Mediation," p. 1; and DOJ/CRD, ADA program (1993) to the end of fiscal year 1997, DRS offered 475 Quarterly Status Report (January-March 1997), p. 9. A list of complainants the opportunity for mediation. Of the 475 com- the cities with mediators participating in DOJ's program is plainants, 289 (61 percent) accepted mediation. Therefore, available through the Internet. See DOJ/CRD, ADA Quarterly DRS has referred 289 complaints (2.9 percent) of complaints Status Report (January-March 1997), p. 9. As of September for mediation. Of the 289 complaints referred for mediation, 1997, ADA mediators were located in more than 100 cities and only 20 complaints involved title II matters. DOJ Comments, 42 States throughout the Nation. See DOJ, "ADA Mediation July 17, 1998, p. 1. Program;" and DOJ September interview, p. 3. 247 Wodatch interview, pp. 5-6. 252 DOJ/CRD, ADA Quarterly Status Report (January-March 1997), p. 9; DRS, "Description of Mediation," p. 1; DOJ, "ADA 248 Hill interview, p. 4. Mediation Program," p. 1; and DOJ, ADA brochure, p. 2. 249 DOJ,"ADA Mediation Program," p.1; DOJ/CRD, ADA 253 NCD, ADA WatchYear One, p. 37; and DOJ, "ADA Me- Quarterly Status Report (January-March 1997), p. 9; and DRS, diation Program," Aug. 14, 1997, p.1; 28 C.F.R. § 35.176 "Description of Mediation," p. 1. Many ADA disputes can be (1997) (ADR encouraged);id §§ 35.173.174 (designated resolved quickly and with minimal expense via the use of agency must initiate negotiations with public entity to secure competent "ADA-literate" mediators. See DRS, "Description of voluntary compliance, before referring matter to Attorney Mediation," p. 1. General). 250 DOJ, "ADA Mediation Program," brochure, no date, p. 1 254 DOJ, Strategic Plan 1997-2002, p. 13; see also 28 C.F.R. (hereafter cited as DOJ, ADA brochure). Mediation proceed- § 35.176 (1997) (ADR encouraged). ings are confidential and voluntary for all participants in a particular case. The process usually requires multiple meet- 255 28 C.F.R. § 35.176 (1997) provides that "the use of alterna- ings between the conflicting parties and their mediator before tive means of dispute resolution, including settlement negotia- an ADA case is resolved. In addition, mediators may hold tions, conciliation, facilitation, mediation, fact-finding, mini- independent, private sessions with one party. See DOJ/CRD, trials, and arbitration, is encouraged to resolve [ADA] dis- ADA Quarterly Status Report (January-March 1997), p. 9 and putes." DOJ, "ADA Mediation Program," p. 1. 258 DOJ, "ADA Mediation Program," p. 1. 27

3 DRS expects to develop policies and procedures spondent(s) by telephone or sends a data refor alternative dispute resolution.257 quest.263 Respondents are contacted by telephone According to DRS, as of December 31, 1997, when: (1) the investigator has all of the needed 322 complaints had been referred to mediation.information, (2) the case is not complex, (3) the In terms of subject matter, 204 of these com-respondent is unlikely to dispute the facts, (4) plaints involved barrier removal issues, 66 in-the respondent is likely to cooperate, or (5) the volved policy modification issues, and 52 in-case is likely to be resolved quickly and infor- volved effective communication. In terms of out-mally. A data request is sent if: (1) the respon- come, 128 complaints had been successfully re- dent has a different version of the facts, (2) more solved, 20 were unsuccessfully mediated, 54information is needed, (3) the investigator thinks were not mediated (due to death of one party, the respondent may not cooperate, or (4) DRS is inability to locate a party, etc.), and 120 wereseeking a settlement agreement and/or dam- still pending.258 Complainants now appear to be ages.264 According to one investigator, once he more familiar with mediation than when thehas contacted a respondent, he may not return program began. DRS sends complainants in theto the case for weeks or months, depending on initial stages of a case a brochure to explain me- his caseload. However, backlogged cases and hot diation. Some complainants now request media- issues such as HIV are given priority.265 tion, and other parties refuse it.269 Investigators conduct site visits as part of Disability advocates generally give DOJ'stheir investigation most often in architectural mediation program high marks as a good alter- cases, but also may conduct site visits to deter- native to litigation and recommend it be publi- mine credibility.266 If a site visit is needed, it can cized more.260 In support of alternate disputebe done at any stage of the investigation once resolution, one advocate wrote that "Mlle pres- the respondent has been contacted. Onsite inves- ent method of investigating each complaint. ..is tigations are normally not done for title II com- ineffective and does not work."261 plaints,267 but one investigator did a site visit for a complaint alleging that a doctor refused to Investigation Process treat a patient with AIDS.268 Cases that are not referred to mediation or Investigators can start the negotiation proc- the U.S. attorney project are investigated, nego-ess with respondents either over the telephone tiated, and in some cases litigated by DRS staff.or in writing. Often when an entity realizes that As mentioned above, once a privacy release let- DOJ has become involved in a complaint, that ter is returned to DRS by a complainant, a DRSentity will quickly provide accommodation as investigator can begin a substantive investiga- required under the ADA.269 After the investigation. The investigator first identifies the applica-tor has negotiated with a respondent, resolution ble legal requirements, determines if additionalmay be accomplished by (1) a letter of findings information is needed, identifies additional ques- with no violation, (2) an informal resolution, or tions that need to be asked, determines the in- (3) a settlement agreement.270 A letter of resolu- vestigative plan, and recommends appropriatetion can be issued if a respondent already has relief.262 The investigator then contacts the re- ingSummary of Steps in a DRS Investigation, DRS re- 257 CRD Performance Plan as Mandated by GPRA. sponse to Request for Documents No. 1", p. 1 (hereafter cited as Complaints ProcessingSteps in a DRS Investigation). 258 Complaints Processing, p. 2. 263 Ibid. 259 Hill interview, p. 4. 264 Ibid. 260 See, e.g., Martin letter, attachment, p. 9 ("There is a need to bring attention and applause to DOJ's Mediation Pro- 265 Whisonant interview, p. 3. gram. It has been demonstrated that mediation can resolve 266 Hill interview, p. 3. disputes quickly and satisfactorily, without the expense and 267 Whisonant interview, p. 3; Wolfson interview, p.2. delay of formal investigation and litigation. Mediation is one of the best ways to handle ADA complaints."). 268 Wolfson interview, p.2. 261 Suter letter, enclosure, p. 3. 269 Whisonant interview, p. 3. 262 John Wodatch, Chief, DRS, letter to Frederick D. Is ler, 279 Ibid., p. 4; see 28 C.F.R. § 35.172(a) (1997) (letter of find- March 19, 1998, attachment, "Subject: Complaints Process. ings); id. § 35.173 (voluntary compliance agreements). 28 undertaken necessary changes. In cases where final resort.277 However, in any case that goes to respondents will have to take significant actioncourt, all resources, including civil penalties and to achieve compliance (such as making architec- compensatory damages, are used to achieve tural modifications), DRS staff will draft a set- compliance.278 tlement agreement.271 In cases resolved through DRS finds out about private litigation that negotiation, the parties are informed of the involves titleII issues through a number of resolution, any necessary monitoring isper- sources such as advocacy groups, private attor- formed, and the file is closed. CMS is updated to neys involved in the cases, staff in U.S. attor- reflect the final action in the case. neys' offices, contacts from public speaking en- If resolution is not accomplished because the gagements, and other continuing contacts. A respondent does not agree to what DRS wantssenior legal counsel also reviews information and negotiations have deadlocked, then a letter from a computer research service and disability of findings with violation is issued.272 Before and health law publications to compile clippings DRS issues this letter, it will give the entity sev-which are circulated to staff.279 Some DRS staff eral chances either to sign or comply with a set-members expressed that a system which could tlement agreement.273 This letter is an indepthscan all documents filed in Federal courts to analysis of the complaint, investigation,evi- identify and alert DRS to title II cases would be dence, legal requirements, and DRS' conclusion.ideal. There is a database in existence; however, This letter also gives the respondent one more not all courts are part of its system.280 chance to accept DRS' offer before the case is As of June 1998, DRS staff had initiated liti- referred for litigation. Cases referred for litiga- gation under title II in three cases, intervened as tion must be reviewed by one of the Deputya party in nine lawsuits, and filed 33 amicus Chiefs and the Section Chief and, ultimately bybriefs.281 DRS resolves some of the cases it liti- the Assistant Attorney General for Civil Rightsgates at the time a suit is filed or soon after- before a letter of findings is issued.274 wards by means of a negotiated consent decree.282 Consent decrees are monitored and en- Litigation Process forced by the Federal court in which they are Under thetitleIIregulations, DRS isentered.283 During the 1990s, DOJ was an initia- authorized to initiate litigation that arises fromtor, intervenor, and an amicus curiae in various its own investigations and on referral from thetitle II disputes that were resolved via consent seven designated Federal agencies that investi- decrees.284 gate and resolve ADA complaints.275 In any ADA The average caseloadof DRS attorneys complaint, DRS' primary objective is to achieve (including pending litigation and monitoring compliance with the statute.276 In general, DRS compliance with settlements or consent decrees) aims to educate and negotiate, and litigation is ais 46 matters.285 The amount of time it takes for

277 DOJ September interview (statement of Wodatch), p. 3. 278 DOJ September interview (statement of Wodatch), p. 3. 271 Hill interview, p. 3. 279 Wohlenhaus interview, p. 3; Novich interview, p. 3. 272 Complaints ProcessingSteps in a DRS Investigation, p. 2. 289 Nichol interview, p. 3; Wohlenhaus interview, p. 3. 273 Whisonant interview, p. 4; see 28 C.F.R. § 35.173 (1997). 281 DRS June 3, 1998, Response, p. 11. 274 Complaints ProcessingSteps in a DRS Investigation, p. 282 DOJ/CRD, ADA Quarterly Status Report (April-June 1. 1997), p. 4. 275 28 C.F.R. §§ 35.174, 35.190(b)(6), 36.503 (1997). See also 283 Ibid. A consent decree is a judgment entered by consent of CRD Performance Plan as Mandated by GPRA.; USCCR, the parties whereby the defendant agrees to stop alleged ille- Funding Federal Civil Rights Enforcement, pp. 25, 34. gal activity without admitting guilt or wrongdoing. Upon approval of such agreement by the court, the government's ac- 276 DRS Staff, DOJ, interview in Washington, DC, Sept. 3, tion against the defendant is dropped. See Joseph Nolan et al., 1997, p. 3. The goal of the Disability Rights Section is to eds., Blacks Law Dictionary 410 (6th ed. 1990). obtain compliance rather than prove that someone has violated the law. See DRS Staff, DOJ, interview in Washington, 284 DOJ/CRD, ADA Quarterly Status Reports, various quar- DC, Nov. 6, 1997 (statement of Elizabeth Savage, Counsel to ters. Acting Assistant Attorney General), p. 4. 285 DRS June 3, 1998, Response, p. 12.

39 a complaint to be resolved through negotiationfar, DRS has received only a few referrals, which and/or litigation varies dramatically from case tomay be a symptom of the designated agencies' case; however, DRS staff indicate that in somelack of knowledge of remedies (damages) avail- instances it could take more than a year.286 Staff able under title II.281 DRS staff noted this lack of acknowledges this is not ideal, but point out thereferrals has hampered the Section's enforce- complaint process has improved much in thement efforts under title II.282 In areas where past 2 years.287 DRS has original jurisdiction, like courts, State Members of the disability community haveand local governments tend to comply before criticized DRS for not litigating enough and ne- DRS seeks approval to litigate.293 gotiating or settling too frequently.288 These According to DRS' Special Legal Counsel, the critics generally believe that DRS should directSection has obtained favorable rulings in every more resources toward establishing legal prece-ADA case it has litigated, with the exception of a dent that will be binding on parties in subse- few cases involving prisons.294 DRS litigation has quent cases, whereas mediation typically obtainsbrought about positive changes in many areas: results for only one party. DRS' Section Chiefclarifying curb cuts, ending unnecessary segre- has responded to this criticism by stating thatgation of persons in institutions, ensuring acces- (1) DRS is constrained by the regulations and bysibility to anonymous voting for persons with Executive Order 12988 to try to resolve casesmobility and sight impairments, and eliminating before litigating, and (2) many in the disabilityimproper mental health inquires in professional community do not want mediation because theylicensing procedures. DRS has won important perceive it as "special treatment" provided undercourt rulings defining what types of disabilities, the ADA but not to other groups through otherservices, and contexts are covered by or trigger antidiscrimination laws.289 obligations to comply with the ADA. DRS has According to DRS staff, although DRS hasalso successfully obtained consent decrees that written amicus briefs and has intervened as ahave had a major effect in clarifying ADA cover - colitigant in preexisting private litigation, the age.295 Department has initiated litigation against pub- The Special Legal Counsel further sees a dis- lic entities under title II in only three cases.280tinction that exists between litigation under the DRS staff attribute this to the fact that staffADA and other statutes, since the ADA is much cannot litigate complaints falling under the ju-more open ended. New issues are always sur- risdiction of any of the designated agencies un- facing because the law is still being developed.296 less the agencies refer such cases to DRS. Thus In terms of developing ADA caselaw, he emphasized that DRS could achieve results in many more areas if it could litigate in cases currently 286 Hill interview, p. 2. handled by the designated agencies, which are 287 Nichol interview, p. 2. not being referred to DRS.297 288 Wodatch interview, pp. 5-6. According to DRS, after a finding of a violation, resolution can take a variety of forms, including informal or formal settlement agreements, consent decrees (approved by a court), or litigation. A decision to litigate is made only where DRS and individuals or entities 291 Wodatch interview, pp. 5 and 7; Novich interview, p. 3; in violation of the ADA cannot agree on appropriate reme- Breen interview, p. 2. Designated agencies also may not be dies or on interpretation of the law. In fact, the title II familiar with 28 C.F.R. § 35.174 (1997). It provides that "if a regulation requires that DRS attempt to reach a voluntary public entity declines to enter into voluntary compliance resolution of complaints prior to commencing litigation. negotiations or if negotiations are unsuccessful, the desig- Also, section 1(c) of Executive Order No. 12988 requires that nated agency shall refer the matter to the Attorney General before pursuing litigation, DOJ should resolve claims infor- for appropriate action." Id. (emphasis added). mally through discussions, negotiations, or settlements, 292 Novich interview, p. 3; Breen interview, p. 2. whenever feasible. DOJ Comments, July 17, 1998, p. 1. See 293 Wodatch interview, p. 6. 28 C.F.R. § 35.174 (1997); Exec. Order No. 12988, 3 C.F.R. 158 (1997). 294 Breen interview, p. 4. 289 Wodatch interview, pp. 5-6. 295 Ibid., pp. 3-4. 290 DRS June 3, 1998, Response, p. 11 and attachments 5 296 Ibid., p. 2. and 7. 297 Ibid., pp. 3-4.

40 Analysis of Complaint Processing Data average number of title II complaints opened The Disability Rights Section has two data-was 726. This number excludes complaints re- bases, a correspondence tracking system (CTS)ferred to other designated agencies. The average and a case management system (CMS). All cor- number of complaints referred to designated respondence received by DRS is entered into andagencies was 590, and the average number of tracked by CTS. Only the correspondence ac-investigations completed, including disposition cepted for investigation, mediation, and/or litiga- of referrals, was 503.304 tion is entered into CMS. DRS considers CTS to The database appears to have numerous er- be a "pretty good" database, but considers CMSrors. Some of the variables listed in the dataset to be "an eighties" database.298 CTS is a pilotdo not contain values. In some instances, nearly program, which originated in DRS, that otherthree-fourths of the complaints have data fields sections subsequently have started to use. that are empty. Reasons for missing data values DRS does not have the same database capa- include: (1) data values just were not entered, (2) bility as EEOC. CMS is outdated and runs on a the values may not have been known at the time program that only allows DRS to generate the complaint was entered into CMS and no up- "canned" or predesigned reports.299 The mostdate was done, and (3) values just were not iden- common standard report DRS staff generates tified for some cases.305 If DRS ever acquires the from the CMS database is the "OPENLIST" re- capability to perform data analysis, it is crucial port, which allows staff to assess the date com-that it have a reliable database with as few plaints were opened, types of respondents, num-missing values as possible. The State in which ber of cases per judicial district or State, and thethe complaint was filed is the only variable for status of the complaint (open, closed, etc.). Thewhich there are no missing values. CMS database also can create a list of complaints providing the names of staff assigned to TABLE 2.1 them. These reports are produced quarterly or as Top States from Which Complaints Are Filed requested and made available to DRS supervisors. Other reports the CMS database can gen- Percentage of erate include lists of closed complaints by title State Complaints all complaints and disposition (outcome) and the number of Total 10,065 100.0 complaints that have been referred to designated California 1,022 10.2 agencies.300 Florida 701 7.0 With different software, DRS would be able to Netiv York 673 6.7 perform data trend analysis, which it currently Texas 668 6.6 cannot do. DRS staff has discussed the merits of Michigan 423 4.2 a database that would be more efficient and ef- Pennsylvania 404 4.0 fective.301 Colorado 330 3.3 According to data received from DRS, a total Virginia 326 3.2 of 10,065 complaints was entered into DRS' CMS Illinois 323 3.2 database between fiscal year 1992 and fiscal Ohio 323 3.2 year 1997.302 This figure is an aggregate of com- Georgia 285 2.8 plaints received under titles I, II, and 111.303 Be- 11-State total 5,478 54.4 tween fiscal year 1993 and fiscal year 1997, the Source: DOJ, DRS, Cordmain Data File.

298Searing interview, p. 3. 299Ibid., p. 2-3. According to data received from DRS, 11 300DRS June 3, 1998, Response, p. 7. States accounted for more than half of all title I,

301Searing interview, p. 2. 302DOJ, DRS, Cordmain Data File (hereafter cited as Cord- 304DRS June 3, 1998, Response, p. 11. Fiscal year 1992 data main data file). are not included because the low number of cases not re- 303The format of the data does not allow us to separate ferred would skew the average. Ibid. complaints by title. 305Shirley Hillgren, Contractor, CRD, DOJ, FAX, p. 1.

41 FIGURE 2.1 Complaints by State

Percent of total complaints NE 3.0 or more(10) 2.0 to 2.9 (15) 111111 1.0 to 1.9 (8)

I less than 1.0 (18)

Source: DOJ, DRS, Cordmain Data File.

II, and III complaints entered into CMS be- centersare more active in filing title II com- tween fiscal year 1992 and fiscal year 1997 plaints.310 (table 2.1). More than 10 percent of all DRS Regionally, the largest proportion of all complaints came from California, which had a complaints filed (37 percent) comes from the population of well over 31 million people in South, although Southern States such as West 1992.306 California also has a history of active Virginia, Delaware, and Arkansas each ac- disability rights groups.307 New York, Texas, counted for less than 1 percent of total com- Pennsylvania, and Florida also accounted for a plaints (figure 2.1).311 Only 18 percent of all high proportion of complaints (figure 2.1). All complaints were filed from the Northeast. four of these States also had relatively large Less than 1 percent of all complaints were populations of 12 to 18 million people in filed from highly rural northeastern States 1992.308 More complaints come from metro- such as Maine, New Hampshire, and Vermont politan areas, such as big cities like Chi - (figure 2.1). Midwestern States such as Ne- cago.309 Communities with independent living braska and Iowa were least likely to have complaints filed (figure 2.1).312 306 Cordmain data file; U.S. Department of Commerce, Bureau of the Census, County and City Data Book: 1994, Washington, DC, Table A. States, p. 2. (hereafter cited as 1994 County City Data Book). 310 Nichol interview, p. 2. 307 Nichol interview, p. 2, 311 Data used in this figure is based on the total number 308 1994 County City Data Book. of title I, II, and III complaints. 302 Bowen interview, p. 2. 312 Bowen interview, p. 2.

42 The DRS database shows the disability for based on several issues.314 There were 5,228 2,315 complaints (table 2.2).313 Slightly more- title II and title III complaints that raised is- than 30 percent of these complaints were from sues about government buildings, prisons, individuals with a mobility impairment, either publicbuildings,lawenforcement,and ambulatory or nonambulatory. Twenty per- courts, due in part to their lack of accessi- cent of the complaints were based on the com- bility (figure 2.2).315 plainants being deaf or on a medical-related Issuesindicatinginaccessibility ac- basis. Complaints also were filed by persons counted for 25 percent of complaints. More with other disabilities, such as blindness, hard than 48 percent of complaints filed indi- of hearing, mental illness, and learning dis- cated that service delivery was an issue. ability. Fewer than 1 percent of complaints Although DRS stated that it has done a lot were from individuals with mental retardation of work in the area of courthouse accessi- or speech impairment. bility,316 nearly 7 percent of complaints indi- Inaccessibility, service delivery, auxiliary cated courthouses as an issue. Another is- aids, government offices, and prisons were sue that frequently arises under court- some of the issues raised in the complaints houses is auxiliary aids, such as interpret- filed. Some complaints identified only one is- ers, with 7 percent of complaints indicating sue, but it was possible for a complaint to be auxiliary aids as an issue. Professional licensing, an issue that has garnered much attention, is not identified in DRS' data- TABLE 2.2 base. Most title III complaints were filed Disability of Complainant. against service establishments, places of lodging, and places of exhibition or enter- Percentage of tainment. Complaints against these types of Basis Complaintscomplaints public accommodations often are due to in- Total 2,315 100.0 dividuals not being able to gain access. Alcohol 12 0.5 Nearly 22 percent of 2,657 complaints in- Blindness 117 5.1 volved service establishments, 17 percent Contagious disease 1 0.0 involved places of lodging, and 16 percent of Deaf 457 19.7 complaints involved sales or rental estab- Drugs 1 0.0 lishments. Environmental The types of discrimination for which sensitivity 71 3.1 complainants filed title III cases included Hard of hearing 135 5.8 policies,existing facilities, and auxiliary HIV/AIDS 85 3.7 aids. Almost 50 percent of 2,665 complain- Learning disability 95 4.1 ants indicated that existing facilities were a Low vision 38 1.6 problem.317 In terms of existing buildings, Medical 452 19.5 DRS has been active in cases involving Mental illness 142 6.1 public places, such as supermarkets and Mobility impairment theaters.318 ambulatory 274 11.8 Mobility impairment nonambulatory 427 18.4 Mental retardation 2 0.1 Speech impairment 4 0.2 Other disability 2 0.1 3" Ibid. Source: DOJ, DRS, Cordmain Data File. 315 Ibid. 316 Nichol interview, p. 3. 317 Cordmain data file. 313 Cordmain data file. 318 Wodatch interview, p. 2.

4 3 FIGURE 2.2 Issues Addressed in Complaints

2500 -

2000 -

t1500 - .a E 2 1000

500 -

0 Government Prisons Public Law Courts office building enforcement Issues Source: DOJ, DRS, Cordmain Data File.

FIGURE 2.3 Agency to Which Complaints Were Referred

40 -

35 -

25 - c u 20- 0 15-

10 - 5-

0 DOEd DOT HHS DOI HUD DOL Agency

Source: DOJ, DRS, Cordmain Data File.

44 FIGURE 2.4 Length of Time Complaint Has Remained Open

35 -

30 -

25 - c 20 - a>

0 1 year 2 years 3years 4+ years Years

Source: DOJ, DRS, Cordmain Data File.

DRS referred 1,298 complaints to six of the involve health-related schools, preschool and seven designated agencies.319 Nearly 40 per-daycare programs, and other health care and cent of these complaints were referred to thesocial service providers and institutions. Ac- U.S. Department of Education and 13 percentcording to DRS' data base, the U.S. Depart- were referred to the U.S. Department ofment of Agriculture is the only designated Health and Human Services (figure 2.3). Anyagency to which it has not referred com- complaints dealing with education systems,plaints. including school buildings other than health- There is concern that DRS does not open all related schools, are referred to the Depart-complaints for investigation due to limited re- ment of Education. The Department of Health sources, including the short supply of investiga- and Human Services receives complaints thattive staff. The limited number of investigators also has had a negative effect on how long it takes for a complaint to be resolved. Of the 319 The number of complaints referred to designated agen- 10,065 complaints entered into DRS' database cies is based on the analysis of DRS' data file. According to a between fiscal year 1992 and fiscal year 1997, memo from DOJ, DRS has referred 3,366 title II complaints to other designated agencies, which is 49 percent of total more than 5,444 complaints, accounting for 54 title II complaints. If DRS had received complaints that percent of all complaints, were still open as of were within the Department of Agriculture's jurisdiction, December 1997.320 Of the 5,444 complaints those complaints would have been referred. DOJ Comments, July 17, 1998. The designated agencies are those charged with overseeing title II compliance of State and local governments. 329 Cordmain data file. 35

45 FIGURE 2.5 Length of Time to Close Complaints

40 -

35 -

30 -

20 -

15 .

10 -

5 -

0 Under 6 6-11 1 year 2 years 3+ months months years Time

Source: DOJ, DRS, Cordmain Data File.

that remained open, 33 percent had been Before DRS established its current group open for 1 year and 29 percent had been of approximately 15 investigators, the in- open for 4 or more years (figure 2.4). vestigative staff was overloaded with too DRS indicates that on average more than many cases (100 or more).323 This and other 18 months passes between the time a com- factors led to a backlog of cases. Some DRS plaint is received and when the complaint is staff feels that investigators are more effi- investi-gated and resolved through negotia- cient and effective in resolving complaints if tions or recommended for litigation.321 Some caseloads are limited to less than 60 active complaints have closed within a couple of cases at any one time.324 Currently, DRS months and some complaints have taken investigators have average caseloads of 35 more than 5 years to resolve. Among the to 55 active cases.325 In addition, each attor- 4,621 complaints that were closed between ney has an average caseload of 46 matters, fiscal year 1992 and fiscal year 1997, 35 which includes cases where compliance with percent were resolved within 1 year (figure consent decrees and settlement agreements 2.5). Although DRS indicated that the time is being monitored. it takes to resolve complaints has decreased, 25 percent of closed complaints took 3 or more years to resolve.322

323Searing interview, p. 5. 321Searing interview, p. 5. 324Ibid. 322Searing interview, p. 5; Cordmain data file. 325Wolfson interview, p. 2; Whisonant interview, p. 4.

36 4. aAss ssmnt of Intl Policy, ev p nt = nd Enforcement

Policy Development manuals, its responses to inquiries from the The U.S. Department of Justice has devel-public, and a series of technical assistance oped title II policy through publication of its titledocuments, many in question and answer for- II regulations, but has not issued formal policymat, that explain particular aspects of title II for guidance documents on title II or specific ADAa general audience. issues. DOJ develops policy to address emerging Shortly after the ADA went into effect, in title II issues primarily through its technical as- 1992, DOJ published a technical assistance sistance and enforcement activities) Specifically,manual for titleII. This manual exemplifies DRS staff develops policy through litigation, in- DRS' first policy guidance. The purpose of the cluding ainicus briefs. DRS then disseminatesmanual is to "present the ADA's requirements this policy in the form of technical assistance,for State and local governments in a format that including letters responding to questions on pol-will be useful to the widest possible audience."3 icy issues; that is, in a format the general publicThe manual is divided into nine main subject can understand more easily.2 headings that include qualified individuals with disabilities, title II general and administrative Through Technical Assistance requirements, program accessibility, and new Over the past several years, DRS has createdconstruction and alterations of buildings and a strong technical assistance program that hasfacilities. Originally, DRS planned to update the produced a substantial amount of material re- Title II Technical Assistance Manual on a yearly lating to title II. Much of DRS' policy guidance isbasis, but as courts began to give the manual expressed through these technical assistancedeference, DRS decided not to make changes to materials,includingitstechnicalassistance the manual and risk losing this deference.4 DRS also develops policy through written responses to ADA questions from Congress and the 1 John Wodatch, Section Chief, Disability Rights Section (DRS), Civil Rights Division (CRD), U.S. Department of public at large. As of March 1998, DRS staff had Justice (DOJ), interview in Washington, DC, Apr. 16, 1998, written more than 900 technical letters on the pp. 3-4 (hereafter cited as Wodatch interview). ADA. DRS staff identify some technical letters to 2 Ibid., pp. 3-4. The title II and title III technical assistance serve' as "policy" letters because they address manuals were initially published in 1992, before any en- emerging issues or provide new information on forcement actions. Other technical assistance is issued in response to inquiries received from Congress and members of the public. John L. Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Isler, Assistant Staff Director, Office of Civil Rights Evaluation (OCRE), U.S. Commission on Civil Rights (USCCR), July 24, 1998, Comments of the U.S. De- 3 DOJ, Title II Technical Assistance Manual (Washington, partment of Justice, p. 1 (hereafter cited as DOJ Comments, DC: U.S. Government Printing Office, 1993). July 24, 1998). 4 Wodatch interview, p. 4. 37

47 existing issues.5 However, DRS staff now writes letters of finding and arnicus curiae and other many fewer letters than in the past, since it tries briefs submitted in title II litigation all represent to respond to questions more frequently by tele- statements of DOJ policy.8 According to DRS phones staff, it has won favorable rulings in most cases According to DRS staff, these letters are notit has litigated under title II. DRS litigation has legally binding on DOJ. Although DRS has anbrought about positive changes in many areas: interest in providing consistent information, and clarifying when curb cuts are required, ending attorneys typically will follow analyses outlined unnecessary segregation of persons in institu- in previous letters, DRS must be able to changetions, ensuring accessibility to anonymous voting policy as needed, whether due to evolving tech- for persons with mobility and sight impairments, nology or to the fact that ADA cases must be and eliminating improper mental health inquir- evaluated on a case-by-case basis. Thus, al-ies in professional licensing procedures.9 though policy letters are important for the rea- In deciding in which cases DRS will file amicus sons mentioned above, they do not have the briefs,staff considers thefollowing criteria: same legal authority as the statute, regulations,whether the case is on appeal because a lower and technical assistance manuals. To date,court ruled unfavorably, whether jurisdiction is- courts have not deferred to policy letters to thesues are involved, whether there is a substantial degree that they do to DOJ's title II regulationsviolation of the law, and whether the case will and the technical assistance manuals.? However, make a significant impact or statement.10 In de- DRS policy letters are discussed in this chapterciding whether to intervene in a case, DRS staff to the extent that they illuminate DOJ policy onconsider whether the case is one DRS would have specific ADA issues. brought on its own initiative, since intervention in DRS also addresses policy issues through othercases requires the same degree of resource com- technical assistance materials such as questionmitment as other litigation. DRS staff consider and answer sheets, brochures, and booklets.whether a particular case is solid and the plain- These materials, which address areas such as lawtiffs rights have been violated." Decisions to liti- enforcement, health care, and child care, gener-gate also take into account resource considera- ally provide information about ADA requirementstions.12 DRS staff has indicated that they try to in a reader-friendly style appropriate for individuals, businesses, and agencies. DRS has pro- 8 See John L. Wodatch, Director, DRS (formerly the Office duced such documents in conjunction with other on the Americans with Disabilities Act), CRD, DOJ, letter to agencies and Federal grant recipients. James C. Hanna, Director, Department of Housing and Community Development, Crownsville, MD, February 1992, Through Enforcement re: Accessibility, reprinted in 3 Nat'l Disability L. Rep. (LRP) 202 (hereafter cited as Hanna letter); John L. Wodatch, DOJ also develops policy through its en- Director, DRS (formerly the Office on the Americans with forcementactivities.Settlement agreements, Disabilities Act), CRD, DOJ, letter to Marty Keene, Presi- dent, Able Handicapped Industries, Inc., Shelburne, VT, no date, re: Accessibility, reprinted in 5 Nat'l Disability L. Rep. 5 Philip Breen, Special Legal Counsel, DRS, CRD, DOJ, (LRP) ¶ 193 (hereafter cited as Keene letter); Deval L. Pat- interview in Washington, DC, Apr.15,1998,pp. 2-3 rick, Assistant Attorney General, CRD, DOJ, letter to Mark (hereafter cited as Breen interview). The letters referred to Hatfield, U.S. Senate, Washington, DC, May 16, 1995, re: throughout this report as "policy" letters are those that are Accessibility, reprinted in 8 Nat'l Disability L. Rep. (LRP) identified by the Civil Rights Division's Freedom of Informa- 33 (hereafter cited as Hatfield letter); James P. Turner, tion Act (FOIA) office as "core letters." They represent the Acting Assistant Attorney General, CRD, DOJ, Policy letter letters in which a question was addressed for the first time. to Harris Wofford, -U.S. Senate, Washington, DC, Mar. 15, The letters referred to in this report as "technical" letters 1994 re: Accessibility, reprinted in 6 Nat'l Disability L. Rep. are those that are not "core" or "policy" letters. None of (LRP) ¶ 26 (hereafter cited as Wofford Policy letter). these letters represents a binding legal interpretation of the 9 Breen interview, p. 4. ADA. See John L. Wodatch, Chief, DRS, CRD, DOJ, letter to 19 Ibid. Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, July 17, 1998, Comments of the U.S. Department of Justice, II Ibid. p. 2 (hereafter cited as DOJ Comments, July 17, 1998). 12 John Wodatch, Section Chief, DRS, CRD, DOJ, letter to Wodatch interview, p. 4. Frederick D. Isler, Assistant Staff Director, OCRE, USCCR, 7 Breen interview, p. 3. Mar. 19, 1998 (hereafter cited as Wodatch letter, Mar. 19, 1998), enclosure, "Preliminary Information Request for the 38

48 litigate a mix of cases, including those that pri-explaining ADA requirements to lay persons.18 marily will help individuals and those that ad-He also noted that courts are not as likely to de- dress a pattern or practice of discrimination.13 Itfer to informal policy guidance as to the law.19 is also important that the private attorneys liti- Furthermore, several disability rights advo- gating the case want DRS to join as a colitigantcates have questioned the efficacy of DRS' ADA through intervention. According to the Speciallitigation program. For instance, advocates have Legal Counsel, in cases involving a constitutional stated that the litigation activities of the Dis- question, the courts are required to notify DOJability Rights Section do not adequately respond and to permit DOJ to intervene.14 to issues faced by persons with disabilities such as insurance concerns.20 To remedy this, DRS Public Participation should provide an opportunity for public input DRS staff has acknowledged that the devel-regarding both the resources DRS dedicates to opment of policy guidance through technical as- litigation and the issues it litigates.21 One dis- sistance and enforcement activities does not pro- ability advocate recommends that the Depart- vide an opportunity fordisabilityadvocacy ment of Justice establish a formal advisory groups and other stakeholders to participate inboard representative of persons with disabilities policy development. If DRS drafted and pub- to decide collectively with DRS staff which cases lished formal policy guidance documents (similar to litigate.22 to those produced by the U.S. Equal Employ- Another advocate has noted that DRS has not ment Opportunity Commission), the public could taken an active role, as litigants or ainicus, in offer comment. However, DRS is primarily com- cases involving mental illness. She said that she plaint responsive, partly because titles II and III could think of only one case where DOJ had filed cover a broad range of areas.15 Also, DRS' workan amicus brief on behalf of an ADA claimant is much more centralized than that of EEOC.with a mental disability, and she noted that it One DRS staff member stated that DRS does not need to issue formalized policy guidance similar to the guidance EEOC issues to guide its staff IS Lawrence Berliner, General Counsel, Connecticut Office of Protection and Advocacy for Persons with Disabilities, letter to located around the country because the regula- Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, tions provide sufficient guidance and all DRS Apr. 20, 1998, p. 2 (hereafter cited as Berliner letter). staff are located in one office.16 19 Ibid. Informal policy guidance explains the law; however, Advocacy groups contend they have more ac- it is not an independent source of legal authority. DOJ cess to and act in an informal advisory capacity Comments, July 24, 1998, p. 1. to EEOC. Each of the three most recent Assis- 20 Berliner letter, p. 3; Chai Feldblum, Professor of Law, tant Attorneys General for Civil Rights has met Georgetown University Law Center, interview in Washing- with advocacy groups, but such meetings do not ton, DC, Feb. 2. 1998, p. 7. occur at regular intervals.'' A representative 21 Berliner letter, p. 3. 22 Paul G. Hearne, President, The Dole Foundation, inter- from one disability advocacy organization com- view in Washington, DC, Feb. 5, 1998, p. 2. The Civil Rights mented that policy guidance would be helpful in Division recognizes members of the disability community as ADA "stakeholders." Therefore, DRS is always willing to meet with representatives of the disability community to hear their concerns. However, as a Federal agency, DOJ is precluded from seeking policy advice from representatives of Disability Rights Section, Subject: Complaints Processing, only one point of view. Any DOJ-initiated effort to seek as- Response to Question No. 2," p. 1. sistance in developing policy would be subject to the re- 13 Staff, DSR, CRD, DOJ, interview in Washington, DC, quirements of the Federal Advisory Committee Act (FACA) Nov. 6, 1997, p. 3 (hereafter cited as DRS Staff November which governs the establishment or utilization of non- 1997 interview). Federal entities as policy advisors. DOJ Comments, July 24, 14 Breen interview, p. 4. 1998, p. 2. The FACA requires any advisory body established by the Federal Government to have a "balanced" rep- 19 Wodatch interview, p. 4. resentation of affected interests. See 5 U.S.C. app. 2 § 5(b)(2) 19 L. Irene Bowen, Deputy Chief, DRS, CRD, DOJ, interview (1994). In addition, the power to take action on any matters in Washington, DC, Apr. 16, 1998, p. 3; DOJ Comments, discussed by an advisory committee is reserved solely for the July 24, 1998, p. 1. executive agency. DOJ Comments, July 24, 1998, p. 1. See 5 17 Wodatch interview, p. 4. U.S.0 app. 2 §§ 2(b)(6); 9(b)(1994). 39

4 9 took a long time to be done.23 She also indicated Self-Evaluation that DOJ has been far less active in addressing The regulations required all public entities to issues relating to individuals with mental dis-conduct self-evaluations of their policies and prac- abilities under title II of the ADA than the Equaltices to identify any changes that should be made Employment Opportunity Commission has been to comply with title II of the ADA.28 Such evalua- in addressing comparable issues under title I oftions were to be completed within 1 year of the the ADA.24 DOJ, however, did provide funding to effective date of the regulations.29 Public entities a mental health advocacy center for a report on that previously conducted self-evaluations re- title II of the ADA and persons with mental dis- quired under section 504 of the Rehabilitation Act abilities. With this funding, the center conducted of 1973 were required to evaluate only those poli- an analysis of benefits offices in South Carolina cies and practices not covered by section 504.30 All to evaluate how accessible these offices were to public entities had to allow submission of public persons with mental disabilities. According tocomments during the evaluation process,31 and the advocacy center, the project resulted in sig-public entities with 50 or more employees had to nificant change to the South Carolina disability keep and "make available for public inspection: (1) benefits system.25 a list of the interested persons consulted; (2) a description of areas examined and any problems Title II Compliance Requirements identified; and (3) a description of any modifica- Administrative Requirements tions made."32 In 1991, DOJ published regulations that spec- Information submitted tothe Commission ify administrative procedures that public entitiesfrom one advocacy group, however, indicates must follow to comply with title II, subpart A, ofthere are communities that have not complied the ADA. These administrative requirements inwith the ADA requirement to complete a self- clude providing notice to the public to ensure per- evaluation of their programs and policies. Ac- sons with disabilities are aware of their rights,cording to the Paralyzed Veterans of America, the conducting a self-evaluation of current policiescity of Princeton, Indiana had not conducted a and practices, establishing transition plans to self-evaluation as of late May 1998, more than 2'A comply with the ADA, and establishing ADA con- years later than the ADA regulation states the tact persons and grievance procedures. self-evaluation should have been completed.33

Notice Transition Plans The regulations require public entities to The regulations required public entities with make available to all interested persons infor- 50 or more employees to develop transition plans mation about the requirements of the ADA andfor any structural changes necessary to achieve the regulations.26 The methods for making suchprogram access34 and to make a copy of the plan information available are to be determined by available for public review.35 A public entity with the heads of public entities.27 authority over streets and walkways had to include in its transition plan a schedule for providing curb cuts or ramps, especially when 23Mary Giliberti, Attorney, Bazelon Center for Mental Health Law, interview in Washington, DC, Dec. 16, 1997, p. 6 (hereafter cited as Giliberti interview). 28Id. § 35.105 (a).

24Ibid., p. 6. DRS stated that DOJ has asked the Bazelon 28Id. Center for Mental Health Law to refer any potential complaints concerning mental disability to DOJ, but to date it 30Id. § 35.105 (d). has not received any such complaints. DOJ Comments, July 31Id. § 35.105 (b). 24, 1998, p. 2. 32Id. § 35.105 (c) 25Giliberti interview, p. 7. 33 Susan Prokop, Associate Advocacy Director, Paralyzed 2628 C.F.R. § 35.106 (1997). Veterans of America, letter to Nadja Zalokar, Director, Americans with Disabilities Act Project, USCCR, May 26, 27Id. For title II purposes, a public entity is defined as any State or local government; any department, agency, special 1998, p. 2 (hereafter cited as Prokop letter). purpose district, or other instrumentality of a State or 34Id. § 35.150 (d)(1). States or local government. Id. § 35.103 (1997). 35 Id.

50 walkways serve State and local government of-failing to conduct a timely self-evaluation, and fices,facilities,and employers.36Transitionfailing to implement changes that were required plans had to contain at least the following in-to enable access:11 Johnson City did not develop a formation: transition plan until 1994, almost 2 years after 1. the name of the official responsible for im- the deadline stated in the regulations. In addition, plementing the plan, although structural changes in existing buildings 2. a list of the physical obstacles that limitwere to be completed no later than January 25, participation in programs and services by 1996, as of the date of the trial (Oct. 10, 1995), persons with disabilities, some changes were not complete.42 Although the 3. a detailed description of the methods thecourt determined the city's transition plan was public entity will use to make programsuntimely and inadequate, and that some of the and services accessible, and facilities' changes were incomplete, it nonetheless 4. a schedule of the steps the entity will takeruled in favor of the city and its manager. The to complete the transition.37 court held that the plaintiff was not excluded from Similar to the requirements for self-evaluations, participation in or denied the benefits of the pub- public entities that previously developed transi- lic entity's services, programs, or activities.43 The tion plans required under section 504 of the Re-court also ruled that although the transition plan habilitation Act of 1973 needed to evaluate onlywas inadequate in many respects, the transition those policies and practices not covered in the plan would not address any and all of the obsta- section 504 transition plan." cles that the plaintiff must deal with on a day-to- According to DRS staff, DRS spent a lot of ef-day basis, because such a plan would be restricted fort to make sure State and local governmentsto public facilities where structural changes are did self-evaluations and transition plans, par-undertaken.44 ticularly during the first 2 years when the Sec- tion set up its enforcement mechanism." How- ADA Contact Persons and Grievance Procedures ever, a representative of one regional disability The title II regulations require public entities businessandtechnicalassistancecenteremploying 50 or more persons to designate an (DBTAC) implied DOJ has not sufficiently ad- employee or employees to coordinate and inves- dressed this area by suggesting that DOJtigate the agency's ADA compliance efforts.45 "should prepare examples of good transition andThe regulations also obligate public entities with self-evaluation plans and make these examples50 or more employees to establish and publish available at nominal cost."40 grievance procedures for complaints alleging In one privately litigated case, a person whofailure to comply with the ADA.46 However, uses a wheelchair alleged that the Johnson City, complainants are not required to exhaust these Tennessee, government violated title II and sec- procedures before they file a complaint with the tion 504 by failing to implement a transition plan, Federal Government, through DOJ or the designated agencies.47 36 Id. § 35.150 (d)(2). Disability rights advocates have indicated to 37 Id. § 35.150 (d)(3). the Commission that many State and local gov- 313 Id. § 35.150 (d)(4). 39 Daniel Searing, Supervisory Attorney for Office Admini- stration, DRS, CRD, DOJ, interview in Washington, DC, 41 Miller v. City of Johnson, Tennessee, No. 2:94CV-246, Apr. 13, 1998, p. 1. 1996 U.S. Dist. LEXIS 7360, at *1*2 (E.D. Tenn 1996). 49 Responses by National Institute on Disability and Reha- 42 Id. at *7. The remaining intersections without curb ramps bilitation Research Americans with Disabilities Act Techni- were scheduled to be modified between October 1995 and cal Assistance Program grantees related to DOJ/EEOC En- October 1996. Id. at *16. forcement, Jan. 6, 1998, provided to the Commission by David Esquith, National Institute on Disability and Reha- 43 Id. at *19. bilitation Research (OCRE files), p. 5 (hereafter cited as 44 Id. at *18. NIDRR, ADA Project Directors' responses). DRS stated that 49 28 C.F.R. § 35.107(a) (1997). it has asked the DBTACs to provide examples of such plans, but to date it has not received any examples. DOJ Com- 46 Id. § 35.107(b). ments, July 24, 1998, p. 2. 47 Id. pt. 35, app. A § 35.170 (1997).

41 ernments are not complying with the ADA.48 For through collaboration with the Protection and example, the executive director of one State'sAdvocacy System.54 Similarly, another advocate disability law center (and protection and advo-recommends that DOJ verify whether State and cacy center) noted that courts in her State havelocal agencies had completed self-evaluations not established grievance procedures and do notand transition plans.55 Finally, disability advo- provide sign language interpreters, a violation ofcates also suggest that DOJ expand its litigation the ADA.49 Repeated calls to major Stateagen-program to adequately respond to issues affect- cies revealed that ADA coordinators still had noting persons with disabilities.56 been clearly designated by those agencies.59 An- other advocate pointed out that State and local General Nondiscrimination governments have not completed self- The ADA title II regulations provide forgen- evaluations as required under the ADA.51 Botheral nondiscrimination against individuals with of these advocates stated that DOJ should bedisabilities by State and local governments in more aggressive in enforcing title II.52 the areas of program accessibility, communica- Disabilityrights organizations havesug- tion, and employment.57 Questions regarding the gested several ways DOJ could improve itsen- applicability or coverage of title II arise ina forcement of titleIIadministrative require-number of contexts, since the scope of title II ments. For example, one organization's repre-extends to entities such as law enforcement and sentative proposed that DOJ promote uniform emergency services, courthouses and other gov- policies and procedures for State courts bypar- ernment buildings, public health care and State ticipating more actively in judicial conferenceslicensing activities. DOJ's enforcement and pol- conducted by State supreme courts.53 Toensureicy development activities in these areasare ex- that more public entities designate ADA coordi- amined below. nators, groups suggest that local entities be re- The ADA and its implementing regulations quired to report annually the names of theirspecify that title II, subtitle A, prohibits all pub- ADA coordinators to the State ADA coordinatorlic entities from discriminating against qualified and that DOJ determine the existence of ADAindividuals on the basis of disability in thepro- coordinators at all levels of government, perhaps vision of services, programs or activities.58 Public entities include State and local governments, 48 See, e.g., Amy Maes, Director, Client Assistance Program, and their departments, agencies, specialpurpose Michigan Protection and Advocacy Service, letter to Freder- districts or other instrumentalities.59 ick D. Is ler, Assistant Staff Director, OCRE, USCCR, Apr. "Disability" is defined by the ADA and DOJ's 30, 1998, enclosure, p. 1 ("Our agency did a survey of Michi- implementing regulations as a "physicalor men- gan's courthouses [to assess] whether or not theywere tal impairment that substantially limitsone or physically and programmatically accessible.. . . What we found generally is that local municipalities are still in need more major life activities." Physical or mental of education about the requirements of the ADA. Many pub- impairment means: (a) 'a physiological disorder lic entities never began or completed the self-evaluation that affects the cardiovascular, digestive,neu- plan or transition plan for addressing programmatic and rological, musculoskeletal, and other systems;or physical access issues.. . .[W]e have had approximately 60 cases dealing with services offered by public entities.") (b) a mental or psychological disorder, suchas 49 Kayla Bower, Executive Director, Oklahoma Disability Law Center, letter to Frederick D. Is ler, Assistant Staff 54 Ibid. NIDRR, ADA Project Directors' responses,p. 5. Director, OCRE, USCCR, Apr. 6,1998, enclosure, p.2 55 Kathy Ertola, Assistant ADA Coordinator, California De- (hereafter cited as Bower letter). partment of Social Services, letter to Nadja Zalokar, Direc- 59 Ibid., enclosure, p. 3. tor, Americans with Disabilities Act Project, USCCR, May 51 See Prokop letter, p. 2. 26, 1998, p. 4. 52 Kayla Bower, Executive Director, Oklahoma Disability 56 Berliner letter, p. 3; Bower interview, pp. 1-2; Michelle Law Center, telephone interview, May 1,1998, pp. 1-2 Martin, Staff Services Analyst, California Department of (hereafter cited as Bower interview); Prokop letter, p. 2. See Rehabilitation, letter to Nadja Zalokar, Director, Americans also David Eichenauer, Access to Independence and Mobil- with Disabilities Act Project, USCCR, May 11, 1998,p. 12. ity, fax to Nadja Zalokar, Director, Americans with Disabili- 57 28 C.F.R. §§ 35.140.164 (1997). ties Act Project, USCCR, June 4, 1998, p. 2. 58 42 U.S.C. § 12132 (1994); 35 C.F.R. § 35.130 (1997). 53 Bower letter, p. 4. 59 Id. § 12131 (1994); 28 C.F.R. § 35.104 (1997). 42

52 mental retardation, organic brain syndrome,ties be "as effective" as communications with specific learning disability, emotional or mentalpeople without disabilities.64 Finally, under the illness, and other disorders.69 Major life activi-regulatory provisions on employment, DOJ re- ties include functions such as seeing, hearing,quires public entities to meet the standards set speaking, breathing, walking, learning, working,forth in title I of the act to ensure against dis- and caring for one's self. Individuals with a dis-crimination on the basis of disability in public ability do not include those who are using illegalemployment.65 Among these three areas, title II drugs. A "qualified individual with a disability"seeks to ensure nondiscrimination for people refers to an individual with a disability who,with disabilities in virtually every facet of the with or without the provision of auxiliary aids,services and facilities public entities provide. As removal of architectural,communication, orsuch, these three areas and the emerging issues transportation barriers, or "reasonable" modifi-associated with them have become the main fo- cations to rules, policies, and practices meets the cus of DRS' efforts to carry out its mission on essential requirements for the receipt of servicesbehalf of people with disabilities. or participation in programs or activities provided by a public entity.61 Program Accessibility Beyond this general nondiscrimination provi- Under title II, a public entity may not deny sion, the regulations address several concerns onthe benefits of its programs, activities, and serv- which title II and DRS' enforcement of the stat-ices to qualified individuals with disabilities be- ute have an important impact. The regulationcause the entity's facilities are physically inac- contains general prohibitions on discrimination cessible to individuals with disabilities.66 A pub- and specific prohibitions on discrimination thatlic entity is required to operate each service, address three substantive areas: program acces-program, or activity it provides so that, when sibility, effective communication, and employ-viewed in its entirety, the service, program, or ment; and two procedural ones: compliance pro-activity is readily accessible to and usable by cedures and designation of enforcement agen-individualswithdisabilities.67No provision cies. Among the three substantive issue areaswaives the obligation of smaller public entities to DOJ has addressed in policy as well as in its titleprovide program access.68 For example, in re- II regulations, a number of important concernssponse to an inquiry of whether a county with is associated with each. few persons with disabilities is exempt from the For example, the provisions on program ac-ADA, DOJ responded that a small number of cessibility detail title II requirements that theresidents with disabilities does not limit the ob- new or altered physical facilities of public enti-ligation to provide program access.69 However, ties be architecturally designed or remodeled sofor facilities built before the January 26, 1992, that the facilities are "readily accessible to andeffective date of the ADA, no public entity, re- usable by individuals with disabilities."62 For gardless of its size, is required to take any action facilities constructed before the ADA, public en-that would result in a fundamental alteration of tities are required to make each "service, program, or activity. ..readily accessible to and usable by individuals with disabilities." This does 64 Id. §§ 35.160.164. not necessarily require that each facility be ac- 65 Id. § 35.140. cessible to individuals with disabilities.63 With 66 28 C.F.R. § 35.149 (1997). See also Janet L. Blizard, Su- respect to communications, the regulations re- pervisory Attorney, DRS, CRD, DOJ, letter to unknown quire that communication between the public individual, Mar. 29, 1993, re: Accessibility, reprinted in 5 Nat'l Disability L. Rep. (LRP) ¶ 485 (hereafter cited as Bliz- entity and people with visual or hearing disabili- ard Unknown letter); John L. Wodatch, Chief, DRS, CRD, DOJ, letter to unnamed individual, Aug. 29, 1996, re: Acces- sibility, reprinted in 10 Nat'l Disability L. Rep. (LRP) ¶ 75 60 See id. § 12102(2); 28 C.F.R. § 35.104 (1997). (hereafter cited as Wodatch Unknown #1 letter). 6.1 28 C.F.R. § 35.104 (1997). 67 28 C.F.R. § 150 (a) (1997). 62 Id. § 35.150. 68 Wodatch Unknown #1 letter. 63 Id. 69 Ibid. 43 its program or in undue financial and adminis-the ADA Standards for Accessible Design. Fur- trative burdens." ther,kitchens, dormitories, libraries, laundry rooms, meeting rooms, etc., are required to be ac- General Requirements cessible, particularly when such facilities are used If a public entity offers a program, service, or by nonfirefighters.76 activity in an existing building, it must not deny Program accessibility in public entities covers the benefits of the program to persons with dis- more than the residents or members of the en- abilities because its structural facilities are inac-tity. Although limiting participation in specified cessible.71 According to the regulations, a publiclocal government programs to local residents entity may comply through such means as re-"does not appear" to be prohibited by title II,a design of equipment, reassignment of services tolocal government might violate the ADA if it im- accessible buildings, delivery of services at al- posed such a limitation to avoid serving nonresi- ternate accessible sites, alteration of existingdents with disabilities.77 DOJ has stated that facilities and construction of new facilities, ordesignating some programs as being open to the any other methods that result in making itsgeneral public and others as being open only to services, programs, or activities readily accessi- local residents does not appear to violate title II. ble to and usable by individuals with disabili-However, the ADA may be violated if most facilities.72 For example, DOJ has stated that title IIties of a recreation center (e.g., picnic areas, ten- requires State and local governments to ensurenis courts, basketball courts) are open to the program access to State lottery programs. The general public, but use of the swimming pool is State must ensure that the lottery program, butlimited to residents when it is known that there not necessarily each individual facility that sellsare no mobility impaired residents and the ju- lottery tickets, is physically accessible to persons risdiction does not want to provide pool services with disabilities. Under the concept of programfor persons with disabilities.78 access, structural changes to facilities are only According to one DRS staff member, the big- required when there is no available alternative gest ADA technical assistance issue that DRS (such as curbside service).73 faces under title II is that a lot of public entities For another example, State and local govern-do not understand program accessibility, even ment fire stations must make their programs ac-though the concept has existed since the enact- cessible to the general public. This may requirement of section 504 of the Rehabilitation Act of making physical changes to existing buildings,1973. Funding for training was provided to lo- acquiring or redesigning equipment, reassigningcalities under section 504, but when those funds services to accessible buildings, and/or deliveringended, many small towns no longer kept up with services at alternate accessible sites.74 Tours can 504 responsibilities. Since that time, many of the be provided in existing facilities that are accessi-people in small towns who worked on section 504 ble, or audiovisual displays can be held inan ac-issues have moved on, so there is a lack of cessible location on the ground floor.75 Fire sta-knowledge and understanding. Also, in smaller tions should be constructed to comply with Uni-towns, many title II entities do not have enough form Federal Accessibility Standards (UFAS)or

76John L. Wodatch, Chief, DRS (formerly the Public Access 7°28 C.F.R. § 35.150 (a)(3) (1997). Section), CRD, DOJ, Policy letter to Craig Nishimura, 71Id. § 35.150 (1997); Blizard Unknown letter. Building Department, City and County of Honolulu, Hono- lulu, HI, re: Accessibility (hereafter cited as Nishimura Pol- 72Id. § 35.150(b)(1) (1997). icy letter). For example, other employees, such as those 73Deval L. Patrick, Assistant Attorney General, CRD, DOJ, responsible for cooking, cleaning, laundry, maintenance, and Policy letter to Mark 0. Hatfield, U.S. Senate, no date, re: clerical tasks, must have access to areas and cannot be ex- Accessibility (hereafter cited as Hatfield Policy letter). cluded or denied access because of a disability. 74L. Irene Bowen, Deputy Chief, DRS (formerly the Office 77L. Irene Bowen, Deputy Chief, DRS (formerly the Office on the Americans with Disabilities Act), CRD, DOJ, letter to on the Americans with Disabilities Act), CRD, DOJ, letter to Luther Field, Batt. Chief/Critical Issues, Austin, TX, Mar. 2, Tria D. Vikesland, Adaptive Recreation Specialist, Eden 1992, re: Accessibility, reprinted in Nat'l Disability L. Rep. Prairie, MN, Feb. 4, 1992, re: Accessibility, reprinted in 4 (LRP) ¶ 409. Nat'l Disability L. Rep. (LRP) 11 319. 75Ibid. 75Ibid.

54 staff to work on these issues sufficiently to reallyArchitectural Considerations learn and understand them. The ADA is de- Existing Facilities signed to foster independence, but often officials Removal of architectural barriersisone in small towns instead try to "help" persons withmethod of providing access to programs in ex- disabilities. Sometimes officials (in any size local isting facilities. Other methods are permitted if government) also try to excuse themselves fromthey ensure that programs are available to indi- complying with the ADA by arguing there are no viduals with disabilities. The title II regulations persons with disabilities in their community.79do not require a public entity to make physical To try to address this lack of knowledge aboutalterations to existing facilities if other means of program accessibility, DRS has developed sev- providing program accessibility are effective or if eral grants for State, county, and local govern-it demonstrates that the cost of making facilities ment officials to learn how to implement the re- accessible would result in undue financial and quirements of the ADA in their own communi- administrative burdens.82 In lieu of structural or ties. DRS also is going to produce something forphysical alterations, program access can be small towns that is similar to the ADA guide forachieved by relocating services from inaccessible small businesses, to help small towns becomebuildings to accessible ones, by assigning aides aware of DRS and other resources.89 However, at to program beneficiaries, by delivering services least one representative of a small town hasto alternate accessible sites, or by moving the criticized the draft document as too legalistic to service to the first floor so the service is accessi- be useful to small and rural governments. Heble to individuals who are unable to climb indicated that his organization had received asteps.83 Only when there is no other way to pro- grant to produce the document, but that DOJvide access must a State or local government had rewritten sections of the document usingundertake structural modifications to its exist- "language that only a lawyer could interpret."81 ing buildings.84 For example, although a school As stated above, title II does not require pub-district is not necessarily required to make every lic entities to make architectural modifications existing building accessible, it may relocate vari- to buildings and other facilities that existed before the ADA became law if program accessibility can be achieved in other ways. However, the 82 28 C.F.R. § 35.150(a)(3) (1997). The head of a public title II regulations do require that new construc- entity or his or her designee must file a written statement of the reasons for concluding that such undue burdens tion and alterations to existing facilities be done would result. The public entity is still required to "take in such manner that the facilities are readily any other action that would result in ... such burdens but accessible to and usable by individuals with dis- would nevertheless ensure that individuals with disabili- abilities.The regulations provide that compli- ties receive the benefits or services provided by the public entity." Id. See also Merrily A. Friedlander, Acting Chief, ance with at least one of two sets of accessibility Coordination and Review Section, CRD, DOJ, Policy letter guidelines with specific architectural standards to Robert W. Nakoneczny, Superintendent of Schools, is deemed to comply with the accessibility re- Boyne City Public Schools, Boyne City, MI, no date, re: quirements for new construction and alterations. Accessibility (hereafter cited as Nakoneczny Policy letter). These requirements are discussed below. 83 Wodatch Unknown #1 letter; James P. Turner, Acting Assistant Attorney General, CRD, DOJ, Policy letter to Don Young, U.S. House of Representatives, Washington, DC, May 26, 1993, re: Accessibility. In choosing methods of ensuring program access, a public entity is required "to give priority to methods that offer services, programs, and activities to qualified individuals with disabilities in the mostintegratedsettingappropriate."28C.F.R. § 35.150(b)(1) (1997). 79 Jim Bostrom, Architect, DRS, DOJ, interview in Washing- ton, DC, Apr. 16, 1998, p. 2 (hereafter cited as Bostrom in- 84 28 C.F.R. pt 35, app. A § 35.150 ("[s]tructural changes in existing facilities are required only when there is no other terview). feasible way to make the public entity's program accessi- 89 Ibid. ble"); Deval L. Patrick, Assistant Attorney General, CRD, 81 Hamilton Brown, Director of Training and Technical As- DOJ, letter to Unknown respondent, Jan. 29, 1995, re: sistance, National Association of Towns and Townships, Accessibility, reprinted in 9 Nat'l Disability L. Rep. (LRP) telephone interview, May 6, 1998, p. 4. ¶ 84 (hereafter cited as Patrick Unknown letter).

J.Jr ous services or programs if necessary to provide do not have ADA responsibilities unless such program accessibility.85 If a school determinedbuildings undergo "substantial remodeling."91 In that making alterations to a gymnasium wouldits guidance to the writer, the Department re- pose undue financial burdens, the ADA does notsponded that specific title II provisions affect require that the gym be closed, only that anotherexisting public facilities,92 and pointed out when location be used so that individuals with disabili- they apply to altered facilities. The act and the ties receive the same benefits and services asimplementing regulations do not require that other members of the community.86 Similarly, each existing facility be accessible. However, al- title II's program accessibility regulation doesterations affecting usability should be done so as not require that every area of an existing publicto make the altered area accessible to the maxi- building be made structurally accessible.87 mum extent feasible." The title II regulations do not require a public For example, with respect to existing facili- entity to make structural changes to existing ties, title II of the ADA does not include any spe- facilities when the entity can achieve compliance cific requirements for the number of restrooms with the ADA by employing other cost-effective that must be made accessible to persons with methods.88 For example, in response to an in- disabilities." In a letter, DOJ addressed the is- quiry about whether a county government mustsue of grab bars in toilet stalls. The Department microfilm or computerize its records to accom-wrote that a State's building code may provide modate individuals with disabilities, DOJ wrote less accessibility than the ADA standards. How- that staff assistance (such as lifting and han-ever, the effort to make facilities accessible, in dling record books) could eliminate costly modi- this case the State configuration for grab bars, fications and that additional measures or meth-can differ from the standards if it provides ac- ods would not be required to avoid discrimina-cess and usability substantially equivalent to the tion.89 Thus, a public entity may use methods to configuration in the standards. In any ADA en- accommodate individuals with disabilities thatforcement action, the covered entity would bear do not require additional expense, regardless ifthe burden of proving the equivalency of any those methods are less efficient than a more alternate design.95 costly alternative, as long as they achieve effective compliance. Leased Facilities Through apolicyletter, DRS addressed Under title II, a State or local agency is not whether public entities have ADA responsibili-required to make each existing building that it ties in existing buildings. A person wrote thatleases from a private landlord accessible, but he" believed public entities in existing buildings State or local programs or activities that are conducted within the buildings are subject to the program access requirement.96 In addition, if the 85 James P. Turner, Acting Assistant Attorney General, CRD, DOJ, Policy letter to Daniel Patrick Moynihan, U.S. Senate, Washington, DC, Jan. 6,1994, re: Accessibility Disabilities L. Rep. (LRP) ¶ 265 (hereafter cited as Evans (hereafter cited as Moynihan Policy letter); Nakoneczny letter). Policy letter. 91 Ibid. ss Nakoneczny Policy letter. 92 28 C.F.R. § 35.150 (1997). 87 John R. Dunne, Assistant Attorney General, CRD, DOJ, 93 Id. § 35.151(b) (1997); see also Evans letter. letter to Doug Bereuter, U.S. House of Representatives, 94 James P. Turner, Acting Assistant Attorney General, Washington, DC, re: Accessibility, reprinted in 4 Nat'l Dis- CRD, DOJ, letter to Wally Herger, U.S. House of Represen- ability L. Rep. (LRP) ¶ 385 (hereafter cited as Bereuter # 1 tatives, Washington, DC, Oct. 28, 1992, re: Accessibility, letter). It is required however, that each service program, or reprinted in 5 Nat'l Disability L. Rep.(LRP) ¶ 285 (hereafter activity conducted by a public entity, when viewed in its cited as Herger letter). entirety, be readily accessible and usable by individuals with disabilities. 28 C.F.R. § 35.150(a) (1997). 95 John L. Wodatch, Chief, DRS (formerly the Public Access Section), CRD, DOJ, Policy letter to Curt Wiehle, Accessi- 88 28 C.F.R. § 35.150(b)(1) (1997). bility Specialist, Minnesota State Council on Disability, St. 89 Mc Nett letter. Paul, MN, May 4, 1994, re: Accessibility (hereafter cited as 99 John R. Dunne, Assistant Attorney General, CRD, DOJ, Wiehle Policy letter). letter to Lane Evans, U.S. House of Representatives, Gales- 96 28 C.F.R. pt. 35, app. A § 35.151 (1997). To the extent that burg, IL, Nov. 14, 1993, re: Accessibility, reprinted in 4 Nat'l leased buildings are newly constructed or altered, they must 46

56 State's landlord is not "agreeable" to making the for Accessible Design to the maximum extent necessary changes, the State is still responsiblefeasible. If it is not feasible to provide physical for complying with title II. Further, if the land- access that will not threaten or destroy the his- lord refuses to pay for or allow the public entity toric significance of the building or facility, then to make the modifications needed for compli- alternate methods of access shall be provided.109 ance, the public entity retains an independent obligation to provide program access by some Educational Facilities other method.97 Although the Department of Justice has written policy letters in response to inquiries in- Historic Facilities volving schools, complaints alleging violations of The ADA, 42 U.S.C. § 12204(c), and the title title II in public schools are handled primarily by II regulations apply to historic facilities and re-theU.S. Department of Education.Private quire accessibility in existing facilities, although schools are subject to title III of the ADA; public a public entity is not required to "take any actionschools are subject to title II. The title II pro- that would threaten or destroy the historic sig- gram accessibility requirement became effective nificance of an historic property."98 Therefore,for public schools on January 26, 1992. Districts physical modifications to historic buildings arewith at least 50 employees were to have devel- not required if the program can be made accessi-oped a transition plan by July 26, 1992, and dis- ble through other means. The regulations alsotricts must comply with requirements relating to state that public entities involved in historicself-evaluations.'91 Public schools are still held preservation programs must first try to provideresponsible for meeting their obligations, even if physical access for individuals with disabilities. a program or activity is held at a private or re- However, if a physical alteration to a historical ligious schoo1.192 To illustrate, if a public school facility would "threaten or destroy the historiccompetes against a private school that does not significance" of the facility, would cause a fun-have accessible facilities and refuses to make the damental alteration in the facility, or wouldfacilities accessible, the public school, in certain cause undue financial or administrative bur- circumstances, may not be allowed to participate dens, an entity may attempt to provide programin the interscholastic program.'" access through other means. These include The concept of program accessibility applies audiovisual presentations of inaccessible por-to public facilities even if the ADA design stan- tions of a facility and assigning guides to indi-dards do not specifically address all of the ele- viduals with disabilities or adopting other inno-ments of the facility. For example, while there vative methods.99 are no specific design standards for school play- Alterationstoqualifiedhistoricfacilitiesgrounds, the regulation does include provisions must comply with the UFAS or ADA Standards that may apply to equipment and establishes requirements for an accessible route.'" In the case of playgrounds, firm paths and surfacing also meet the construction and alteration requirements of § 35.151. Public entities are also "encouraged to look for the most accessible space to lease and to attempt to comply with [the] minimum Federal requirements" for leased buildings 100 Id. § 35.151(d). contained in the Minimum Guidelines and Requirements for 101 Id. §§ 35.150(c)(d), 35.105; John R. Dunne, Assistant Accessible Design published by theArchitectural and Attorney General, CRD, DOJ, letter to Doug Bereuter, U.S. Transportation Barriers Compliance Board at 36 C.F.R. § House of Representatives, August 21, 1992 (hereafter cited 1190.34, even though they apply only to Federal Govern- as Bereuter #2 letter). ment leases. Id. 102 Bereuter #2 letter. 97 Stewart B. Oneglia, Chief, Coordination and Review Sec- 103 Ibid. tion, CRD, DOJ, Policy letter to Barry M. Vuletich, Manager of Consumer Affairs, Division of Rehabilitation Services, 104 Stewart B. Oneglia, Chief, Coordination and Review Sec- Little Rock, AK, Jan. 27, 1994, re: Accessibility. Also re- tion, CRD, DOJ, Policy letter to unknown respondent, no printed in 5 Nat'l Disability L. Rep. (LRP) ¶ 325 (hereafter date, re: Accessibility (hereafter cited as Oneglia letter to cited as Vuletich Policy letter). unknown respondent). Public entities can choose to design, construct, or alter facilities either in accordance with the 98 28 C.F.R. § 35.150 (a)(2) (1997). ADAAG or the UFAS. This is deemed to comply with the 99 Id. § 35.150 (b)(2). requirements of title II. 28 C.F.R. § 35.151(c) (1997)

5f, should be provided to allow playground facilitiesstands, etc. DOJ has issued several policy letters to be used by persons with limited mobility.105 to provide guidance on the applicability of title II Schools must be accessible not only to students, to State and local courts. These letters clarify that but also to parents, visitors, and the generalan accessible route to public areas must be pro- public.106 vided.110 To be considered accessible, a jury box or If a public school has an inaccessible audito- witness stand must be reachable by an accessible rium in an existing facility, it must make the route, must contain at least one accessible wheel- auditorium accessible or move the event to a lo-chair space (a removable seat may be installed in cation that is accessible.' °7 DOJ has determined the space when it is not needed to accommodate a that in situations where a school has an inacces-wheelchair), and must be served by an unob- sible auditorium, the school district is required structed turning space. Any fixed counters or op- to implement one of the two alternatives to be inerating mechanisms in a jury box or witness compliance. If making the auditorium accessible stand must be accessible.111 would result in a fundamental change in the The ADAAG requires surfaces along accessi- events or would constitute an undue financial or ble routes to be stable, firm, and slip resistant. administrative burden, the school would be re-There are no requirements on slip resistance in quired to move the events to an accessible loca- these areas.112 If the accessible juror or witness tion.108 seating is not raised, an accessible route consists Many accessibility complaints fall under the simply of a level route with adequate width and jurisdiction of the designated Federal agencies. head room. If the accessible seating is raised, a For example, DRS refers school building com-ramp that complies with the UFAS must be pro: plaints to the Department of Education andvided.113 Although the requirement that some complaints dealing with public parks to the De-juror and witness seats be level or ramped may partment of Interior. However, the Departmentalter traditional courtroom design, DOJ advised of Education does not have architects on its staffthat such alterations are necessary to ensure and it is so entrenched in section 504 compliancethat individuals with disabilities have the same issues that architectural facilities issues are notopportunities to participate fully in their com- a priority. One DRS architect said she is notmunities that nondisabled individuals have, in- aware of any instances when the Department ofcluding opportunities for jury service and for Education or any of the other designated agen-participation as witnesses inlegal proceed- cies have consulted with DRS architects for ad-ings.114 Judges' benches and clerks' and report- vice or assistance regarding building accessibil-ers' stands must also be accessible, so as not to ity complaints.'09 pose obstacles to employment of individuals with

Courts Existing State and local courthouses and 110 Deval L. Patrick, Assistant Attorney General, CRD, DOJ, letter to Curt Weldon, U.S. House of Representatives, Upper courtrooms also are covered by title II and are Darby, PA, Oct. 18, 1995, re: Accessibility, reprinted in 9 subject to accessibility requirements. The applica- Nat'l Disability L. Rep. (LRP) 153 (hereafter cited as Weldon ble standard of accessibility is either the UFAS or letter); see also Deval L. Patrick, Assistant Attorney Gen- the ADAAG, and applies to jury boxes, witness eral, CRD, DOJ, Policy letter to The Honorable Rick San- torum, U.S. Senate, Philadelphia, PA, no date, re: Accessi- stands, judges' benches, clerks' stands, reporters' bility (hereafter cited as Santorum Policy letter). 111 Weldon letter; Santorum Policy letter.

11228 C.F.R. pt. 36, app. A §§ 4.3.6 & 4.5.1. (1997); see also 105Ibid. John R. Dunne, Assistant Attorney General, CRD, DOJ, 106Bereuter #1 letter. letter to Ernest F. Hollings, U.S. Senate, Washington, DC, 107Patrick Unknown letter. re: Accessibility, reprinted in 4 Nat'l Disabilities L. Rep. 108Ibid. (LRP) ¶ 184.

102Harland interview, p. 3. DRS notes that on several occa- 113See John L. Wodatch, Chief, DRS (formerly the Public sions the Department of Education has consulted with DRS Access Section), CRD, DOJ, Policy letter to J. Keith Aus- about the application of the ADA Standards for Accessible brook, Counsel to the Municipal Castings, Fair Trade ,Coun- Design to schools and has recently requested staff training on cil, Washington, DC, Aug. 30, 1994, re: Accessibility. architectural accessibility. DOJ Comments, July 24, 1998, p. 3. 114Weldon letter.

58 disabilities. In 1996, DOJ issued proposed stan-from a street-level pedestrian walkway."119 Fur- dards for courtrooms that would require judges'ther, "newly constructed or altered street level benches and clerks' stations to be either fullypedestrian walkways must contain curb ramps accessible or adaptable, at the discretion of theor other sloped areas at intersections to streets, builder. An adaptable bench or station would be roads, or highways."120 designedtocontain necessary maneuvering The Department of Justice has provided a clearances and other spaces so full accessibilitysubstantial amount of guidance regarding side- can easily be achieved when required. An adapt- walk curbs and ramps through its policy letters. able judges' bench would not need a ramp if itFor example, the Department has indicated the were designed so that a ramp or lift could beADA does not require installation of curb ramps easily installed at a later date.115 at every intersection. However, if a locality con- In spite of the guidance DOJ has provided re- structs a new street or alters an existing street garding court accessibility, disability rights advo-or intersection, it should provide accessible curb cates have informed the Commission that theyramps or ramps where elevated or curbed pedes- continue to receive complaints about courts thattrian walkways intersect with the new or altered are not accessible to persons with disabilities.116 street or intersection.121 In some cases, cities The Michigan Protection and Advocacy Serviceshould install curb ramps to provide access to (MPAS) attempted to assess ADA compliance inexisting pedestrian walkwayseven those that all courts throughout the State of Michigan byare not being otherwise alteredto provide ac- sending a survey that asked courts to identifycess to the "program" of using streets and walk- their ADA coordinators and submit copies of theirways.122 Title II further requires that public en- self-evaluations and transition plans. The lowtities maintain in operable working condition number of responses received and the poor quality those features, including sidewalks and streets, of such responses led MPAS staff to conclude that that are required to be readily accessible to and court personnel in Michigan need further educa- usable by individuals with disabilities.123 tion about the ADA and its requirements.117 A In 1993 the Department of Justice submitted Georgia disability organization wrote about a an amicus curiae brief to the Third Circuit Court "metropolitan courthouse which had inaccessible of-Appeals for a case involving the installation of restrooms among other improper features."118 curb ramps. In Kinney v.Yerusalim, the De- partment of Justice argued the court should af- Sidewalks, Curbs, and Ramps firm a lower court decision that the Pennsylva- The title II regulations also provide for acces-nia Department of Transportation's resurfacing sible curbs, roads, ramps, and sidewalks. Theof a city street constitutes an "alteration" within regulations state that "[n]ewly constructed orthe meaning of the title II regulations, thus re- altered streets, roads, and highways must con-quiring the public entity make the altered por- tain curb ramps or other sloped areas at any intion of the road readily accessible to individuals tersection having curbs or other barriers to entry with disabilities by installing curb ramps.124 The Department also argued the court should affirm "5 Ibid. 116 See Lawrence Berliner, General Counsel, Connecticut 119 28 C.F.R. § 35.151(e)(1)(2). Office of Protection and Advocacy for Persons with Disabili- 120 Id. § 35.151(e)(2). ties, letter to Frederick D. Isler, Assistant Staff Director, OCRE, USCCR, Apr. 20, 1998, enclosure, p. 4; David Eich- 121 Id. § 35.151(e)(1) (1997); Walker Policy letter; see also enauer, Access to Independence and Mobility, fax to Nadja Daniels Policy letter. Zalokar, Director, Americans with Disabilities Act Project, 122 Deval L. Patrick, Assistant Attorney General, CRD, DOJ, USCCR, June 4, 1998, p. 3; Joyce R. Ringer, Executive Di- letter to Frank D. Lucas, U.S. House of Representatives, Enid, rector, Georgia Advocacy Office, letter to Frederick D. Isler, OK, Aug. 2, 1995, re: Accessibility, reprinted in 8 Nat'l Dis- Assistant Staff Director, OCRE, USCCR, Apr. 1, 1998, p. 6. ability L. Rep. (LRP) ¶ 348 (hereafter cited as Lucas letter). 117 Amy Maes, Director, Client Assistance Program, Michi- 123 Ibid. gan Protection and Advocacy Service, letter to Frederick D. 124 Brief for the United States as Amicus Curiae, Kinney. v. Isler, Assistant Staff Director, OCRE, USCCR, Apr. 30, Yerusalim, at 12, 812 F. Supp. 547 (1993), aff'd, 9 F.3d 1067 1998, enclosure, p. 2. (3d. Cir. 1993), cert. denied sub nom. Hoskins v. Kinney, 511 118 Ringer letter, enclosure, p. 4. U.S. 1033 (1994).

49 the lower court ruling that 28 C.F.R. § 35.151 along highly trafficked routes. The court granted covering new construction and alterations doessummary judgment for the defendant on all not allow an "undue burden" defense.'" Theplaintiffs' claims.'" court of appeals upheld the lower court ruling, In Maryland, an individual with a perthanent and the Supreme Court declined to accept the spinal injury sued the Montgomery County gov- case on appeal.'" ernment under the ADA to prevent the installa- In early 1998, residents of Scranton, Penn-tion of speed bumps on the street on which he sylvania, filed a suit against local officials, al-lives, claiming the speed bumps would interfere leging that forseveral years thecity hadwith his use of the road because of the pain the "willfully refused" to install ramps or curb cuts speed bumps would cause.131 The court found the whenever it resurfaced streets in violation ofindividual was unable to state a claim under title title II and the Kinney ruling.127 In addition toII, since the speed bumps did not deny him compensatory and punitive damages, the resi- meaningful access to the road. Although the court dents are seeking declaratory and injunctive re- recognized that the speed bumps present diffi- lief enjoining any future expenditures from theculty, the bumps did not totally bar his use of the city's capital budget until it installs curb cuts atroad or leave him entirely unable to benefit each corner of every street resurfaced since the meaningfully from the streets. Further, the court ADA's effective date of January 26, 1992, ornoted that neither title II nor the technical assis- since the Third Circuit's decision in 1993.128 tance manual promulgated by the Department of In another case, two individuals who use am- Justice contains provisions on speed bumps.132 bulatory devices for mobility filed suit against Although the Department of Justice has Carlsbad, California, alleging denial of access totaken steps to enforce ADA requirements on the city's facilities and violation of the State lawsidewalks, curbs, and ramps, at least one advo- prohibiting discrimination in public accommoda-cacy group has informed the Commission there tions.128 The plaintiffs alleged that the defendantare communities that have yet to comply. Fur- city failed to develop an appropriate transitionther, this same advocacy group maintains the plan on the installation of curb ramps, to make Department of Justice delays too long (from 14 existing facilities accessible, and to install curbto 36 weeks) in responding to complaints about ramps to existing sidewalks, and improperlysuch State and local governments, often only to modified existing curb ramps such that they didtell complainants it will not investigate.'" not comply with the ADA access guidelines for buildings. The city of Carlsbad provided evi- Public Parking dencetoshowthatitconductedaself- Title II's program accessibility regulations134 evaluation, initiated an ADA task force that re-also require State and local government entities ceived input from interested parties, and com-to make their public parking programs accessi- piled information to develop the transition plan.ble to individuals with disabilities. Therefore, if The court found the city had provided accessi-a State or local government provides parking at bility to the facilities in question and provideda facility, it must provide an appropriate number curb ramps where necessary to provide accessof accessible parking spaces for individuals with disabilities.'" Further, title II prohibits a public 125 Id. at 19. 126 Kinney v. Yerusalim, 9 F.3d 1067 (3rd Cir. 1993), cert. 139 Id. at 1335-42. denied sub 110M. mem., Hoskins v. Kinney, 511 U.S. 1033 131 Slager v. Duncan, No. AW-97-1598, 1997 U.S. Dist. (1994). LEXIS 12963, at *1 (D. Md. Aug. 8, 1997). DOJ was not a 127 ADAPT of Scranton v. City of Scranton, No. 98-1003, 11 party to this lawsuit. . Nat'l Disabilities L. Rep. (LRP) 11 10 (M.D.Pa. Jan. 22, 1998). 132 Id. at *2. Filing the lawsuit on the plaintiffs' behalf was ADAPT of 133 Susan Prokop, Associate Advocacy Director, Paralyzed Scranton, an organization of Scranton residents with am- Veterans of America, letter to Nadja Zalokar, Director, Ameri- bulatory disabilities. DOJ was not a party to this lawsuit. cans with Disabilities Project, USCCR, May 26, 1998, p. 2. 128Id. 134 28 C.F.R. §§ 35.149.151 (1997). 129 Schonfeld v. City of Carlsbad, 978 F. Supp. 1329, 1331 135 Deval L. Patrick, Assistant Attorney General, CRD, DOJ, (S.D. Cal. 1997). DOJ was not a party to this lawsuit. Policy letter to Bill Young, U.S. House of Representatives, 50

G 0 entity from imposing a surcharge on an individ- In one situation, a county election depart- ual with a disability for any measure that is nec- ment failed to provide access to the polling site essary to ensure nondiscriminatory treatmentat a high school auditorium. As a result, an indi- required by the ADA.138 According to a policyvidual with a mobility impairment had to vote in letter, the State of Florida requires users ofthehallway.140 DOJ determinedthatthe parking spaces for individuals with disabilities county's use of the curbside voting procedure did to display a permit costing $15 or special licensenot violate title II, noting that existing polling plates,whichcostno more thanregular places are not required to be accessible, provided plates.137 However, individuals with disabilitiesthat alternative methods are effective in ena- that limit their ability to walk significant dis-bling individuals with disabilities to cast a ballot tances, but who do not use wheelchairs, do not on the day of the election.141 have the option of obtaining the special license In another setting, an individual claimed he plates. Instead, they must obtain the $15 specialcould not participate as a candidate in the parking permit. Failure to provide a cost-freeState's nomination process because of his dis- option for use of required accessible parkingability, alleging discrimination in the petition spaces is a violation of title 11.138 process because unlike other nondisabled candidates, he could not walk door to door to collect Voting signatures due to his mobility impairment.142 In Title II protects qualified individuals withits analysis, DOJ concluded the State law is not disabilities from discrimination in the State ordiscriminatory because the State provides 5 local electoral process. Polling places or votingmonths to collect signatures and that individuals locations must be accessible. When polling placeswho seek nomination through the petition proc- are located in existing facilities, the public entityess are not required to collect the signatures in must ensure that the voting "program," whenperson. For example, nominees may collect sig- viewed in its entirety, is accessible to individuals natures at public parks, public buildings, shop- with disabilities. However, localities may initiate ping malls, or other areas.143 methods or alternatives (to structural or physi- In a case filed by a nonprofit organization, cal accessibility) that provide access. Sample al-the Philadelphia County (Pennsylvania) Board ternatives include the absentee ballot, mobile of Elections was charged with violating the ADA voting units, and accessible areas at shopping and the Voting Rights Act by prohibiting voters malls to carry out some of the voting procedures with disabilities from receiving assistance in to comply with the act.'" DOJ reviews the al-picking up and returning absentee ballot pack- leged failures to ensure the participation of per- ages.144 In addition to depositing ballots in a sons with disabilities in the electoral process onmailbox or personally delivering them to the a case-by-case basis and on the issue in question. board of elections, voters could have another person mail their ballots for them or give them Washington, DC, no date, re: Accessibility (hereafter cited as directly to a mail carrier. The board of commis- Young Policy letter). sioners also could authorize an agent to deliver 136 28 C.F.R. § 35.130 (f) (1997); Young Policy letter. or pick up the ballots. The court held that these 137 Young Policy letter. alternatives allowed individuals with disabilities 138 Ibid. 139 Stewart B. Oneglia, Chief, Coordination and Review Sec- 149 Jacobs Policy letter. tion, CRD, DOJ, Policy letter to Unknown respondent, Colo- 141 Ibid. rado Springs, CO, Feb. 5, 1993, re: Accessibility (hereafter 142 Oneglia Orlando Policy letter. cited as Oneglia Colorado Springs Policy letter); Stewart B. Oneglia, Chief, Coordination and Review Section, CRD, 143 Ibid. DOJ, Policy letter to Brenda K. Jacobs, Clark County Elec- 144 Jacobs v. Philadelphia County Bd. of Elections, No. tion Department, Las Vegas, NV, Aug. 19, 1993, re: Accessi- CIV.A. 94-6666, 1995 U.S. Dist. LEXIS 16013, at *2*4, bility (hereafter cited as Jacobs Policy letter); Deval L. Pat- (E.D. Pa. Oct. 30, 1995). These measures were mandated by rick, Assistant Attorney General, CRD, DOJ, Policy letter to the district court in an earlier voting fraud case and changed Strom Thurmond, U.S. Senate, Washington, DC, no date, re: the prior practice allowing an agent designated by the voter Accessibility (hereafter cited as Thurmond Policy letter); See to obtain and return the absentee ballot. Id. DOJ was not a also Hatfield Policy letter. party to this lawsuit.

61 the opportunity to participate in the electoral requirements.140(Anelevatorexceptionfor process, and therefore the elections proceduresnewly constructed "small buildings" applies only did not violate the statutory standards of theto privately owned buildings, not State and local ADA or the Voting Rights Act.145 government facilities.150) DOJ has indicated that State and local gov- One DRS architect has found the interaction ernments are not required to provide Brailleof civil rights and building codes is often a diffi- ballots or electronic voting to enable individualscult concept for both architects and lawyers to with vision impairments to vote without assis-grasp. Cross training is, therefore, necessary, tance. Poll workers who provide assistance toand DRS architects provide training related to voters are required to respect the confidentialitythe ADA standards and how they are applied. of the voter's ballot, and the voter has the option DRS architects also work in technical assistance of selecting an individual of his or her choice to and certification.151 provide assistance in place of poll workers.146 DRS staff has indicated that the building industry expresses confusion about who should be New Construction and Alterations held accountable for ensuring compliance with The title II regulations require all facilitiesADA accessibility regulations. DRS' position, designed, constructed, or altered by, on behalf of, expressed in a September 1995 policy letter, is or for the use of a public entity to be readily ac- that since architects draw plans and design cessible to and usable by individuals with dis-buildings, they should do so with accessibility in abilities, if the construction or alteration beganmind.152 However, architects believe that build- after January 26, 1992.147 When making altera- ing owners should be held accountable and liable tions to an existing building or constructing awhen compliance is not met, because owners of- new building or facility, a public entity mustten do not allow them to design accessible meet the requirements set forth in either the buildings and will take their business elsewhere Uniform Federal Accessibility Standards (UFAS) if architects do not follow their instructions.153 or the ADA Accessibility Guidelines for Build- As architects become more aware of the ADA, ings and Facilities (ADAAG).148 The UFAS andthe questions they ask have become more ad- the ADAAG specify the elements and spaces that vanced. The total number of written technical must be accessible, as well as the technical re- assistance requests that DRS receives has requirements for meeting building accessibilitymained the same, but the number of phone calls for technical assistance has increased.154 DRS is now trying to promote uniformity in 145 Id. at *5*6. But see Dipietrae v. City of Philadelphia, the regulations with which builders must comply. 666 A.2d 1132, 1135-36 (Pa. Commw. Ct. 1995) (Pa. Election Code allows disabled voter to appoint agent of choice to ob- DRS staff believes standards should not be made tain absentee ballot and deliver it to election board), aff'd more stringent than they are because they were per curiam, 673 A.2d 905 (1996). The federal court in Jacobs not designed to accommodate all persons with rejected the 1995 Dipietrae decision, noting that while Fed- disabilities. It contends accessibility and cost eral courts are "bound to 'give due consideration to the deci- sional law of inferior state courts' [they are] not required to give those decisions binding effect." Jacobs, 1995 U.S. Dist. 148 28 C.F.R. pt. 36, app. A (1997) (ADAAG); 41 C.F.R. subpt. LEXIS 16013, at *7*8 (citing Dillinger v. Caterpillar, Inc., 101-19.6, app. A (1997) (UFAS). 959 F.2d 430, 435 n.11 (3rd Cir. 1992)). DOJ was not a party to this lawsuit. 150 Moynihan Policy letter. 148 Oneglia Pinellas County, FL, Policy letter; Ruggles Policy 151 Ellen Harland, Architect, DRS, CRD, DOJ, interview in letter. Washington, DC, Apr. 14, 1998, p. 2 (hereafter cited as Harland interview). 147 28 C.F.R. §§ 35.151 (a)(b) (1997). 152 Deval Patrick, Assistant Attorney General, CRD, DOJ, 148 Id. § 35.151(c). Departures from the particular require- letter to Donald A. Manzullo, U.S. House of Representatives, ments of either standard are permitted "when it is clearly re Liability of Architects and Contractors, Sept. 11, 1995, evident that equivalent access to the facility or part of the reprinted in 8 Nat'l Disability Law Rep. ¶ 282. The letter facility is thereby provided." Id. See also James P. Turner, clarifies that architects are liable under title III, but does Acting Assistant Attorney General, CRD, DOJ, letter to J. not address title II liability. James Exon, U.S. Senate, Washington, DC 20510, Apr. 26, 1993, re: Accessibility, reprinted in 5 Nat'l Disability L. Rep. 153 Harland interview, p. 3. (LRP) ¶ 250. 154 Ibid.

62 should be balanced. One DRS architect voiced her tence,161 about 450 in the United States. The cer- support for the standards for new construction,tification process has proved to be a daunting re- saying they are very clear and easy to complysponsibility. DOJ does not certify the individual with. The standards for alteration recognize thatplans of builders. In a certified State, builders can constraints in an existing structure may limitask for waivers from their local building boards.162 possible accessibility modifications. Most compli- State and local governments may, but are not ance problems and difficulties arise in existingrequired to, apply for certification by DOJ that structures. A number of complaints dealing withindicates a State or local building code meets or new construction is being filed under title II.155 exceeds minimum ADA title III requirements for accessibility and usability of places of public ac- Certification commodation and commercial facilities.163 The Certification is a title III issue because theADA does not require State and local govern- certification procedure was established in the ments to apply to the agency for certification, and enforcement mechanism of title III, which ap-since State and local officials have no jurisdiction plies only to privately owned facilities. State andto enforce the ADA, they are not obligated to en- local governments are not required to obtainsure compliance with the standards for commer- building permits.156 However, because some cial or noncommercial facilities.'" State and local governments may own privately used facilities, or may occupy or lease privately EquallyEffective Communication owned facilities, certification issues may also fall Title II requires State and local governments under title II. to ensure their communications with program Although States benefit from certification inparticipants and members of the public with dis- that they better serve their citizens, architectsabilities are as effective as their communications and builders would benefit most from certifica-with other participants, unless doing so would tion.157 Local building inspectors could then raise result in a fundamental alteration to the pro- the comfort level of individuals who obtain per-gram or create undue financial and administra- mits by notifying them they will be in compli- tive burdens.165 Public entities may be required ance with ADA by complying with local codes. to provide interpreters, visual aids, and other There is no plan review or building inspectionmechanisms that enable individuals with dis- process at the Federal leve1.158If a State's abilities to have full access to public programs.166 building code and the ADA requirements are The regulations state that in deciding "what type almost identical, then there is no conflict. Thus, of auxiliary aid and services is necessary, a pub- for all intents and purposes, States can achieve the equivalent to certification by amending their codes to follow the ADA closely.159 However, 161 The certification process was enacted by Congress in title III of the ADA. It is not a concept created by the DOJ regu- public accommodations and commercial facilities lations. DRS has no information that would enable it to that are involved in ADA lawsuits will not be know whether Congress considered the number of codes or able to claim the evidentiary advantage provided code jurisdictions in this country. DOJ Comments, July 24, by certification.169 1998, p. 3. When the certification process was first writ- 162 Harland interview, p. 4. States do not have the authority to waive ADA requirements. State or local building officials ten into the title III regulation, no consideration may advise builders about possible applications of certain was given to the number of building codes in exis- limitations that are included in the ADA Standards, but State officials' approval of modifications of the standards are not binding in ADA enforcement proceedings. DOJ Com- 155 Ibid., p. 4. ments, July 24, 1998, p. 3. 156 Ibid., pp. 3-4. 163 28 C.F.R. § 36.602 (1997); Hatfield letter. 157 Janet Blizard, Supervisory Attorney for Coordination and 164 See Hatfield letter. Certification, DRS, CRD, DOJ, interview in Washington, DC, Apr. 15, 1998, p. 3 (hereafter cited as Blizard interview). 165 28 C.F.R. §§ 35.160.164 (1997); John L. Wodatch, Chief, DRS, CRD, DOJ, Unknown letter, July 23, 1996, re: Acces- 158 Harland interview, p. 4. sibility, reprinted in 8 Nat'l Disability L. Rep. (LRP) ¶ 394 169 Blizard interview, p. 3. (hereafter cited as Wodatch Unknown #2 letter). 160 DOJ Comments, July 24, 1998, p. 3. 166 Wodatch Unknown #2 letter.

53 63 lic entity shall give primary consideration to thefled by the National Registry of Interpreters for requests of the individual with disabilities."167 the Deaf to be considered qualified.'" The regulations also specify that public enti- DOJ has written several policy letters to pro- ties should ensure that they provide effectivevide guidance on equally effective communica- communication for people who use telecommuni- tion in varied contexts. For example, State or cations devices for the deaf (TDDs),direct access local governments that provide tornado and to telephone emergency services for people who other emergency warnings must ensure that the use TDDs or computer modems, and information warnings are accessible to persons with disabili- and signage about the locations of accessibleties, unless this would result in a fundamental services and facilities for persons with disabili-alteration or undue burden. State and local gov- ties.168 For example, to comply with the regula- ernments may consider flashing lights as a pos- tion on information and signage, a public entity sible means of ensuring effective communication, shall (a) "ensure that interested persons, in-although the regulations do not dictate use of cluding persons with impaired vision or hearing, any particular method or device to meet effective can obtain information as to the existence andcommunication requirements.172 In terms of location of accessible services, activities, and fa-educational institutions, universities and col- cilities"; and (b) "provide signage at all inacces- leges are responsible for providing qualified in- sible entrances to each of its facilities, directingterpreters where necessary to ensure effective users to an accessible entrance or to a location at communication for persons with disabilities, and which they can obtain information about acces-are not excused from this responsibility even if sible facilities." Public entities also should dis-they do not receive outside funds to cover the play the international symbol for accessibility atcost of the services.173 Courts must ensure effec- each accessible entrance of a facility.169 tive communication through appropriate auxiliary aids, including sign language interpret- General Requirements ers.174 Theaters owned and operated by State or "Communication" encompasses many differ- local governments must meet title II program ent forms of conveying information in diverseaccessibility requirements. However, although settings. The ADA does not require public enti- theaters may provide tickets and programs in ties to provide auxiliary aids and services inBraille to persons with visual impairments, they every situation, and questions sometimes ariseare not required to do so. For example, if a thea- as to when such assistance must be provided.ter provides an usher to guide persons with vis- For instance, one issue concerns when interpret-ual impairments to their seats, in most instances ers become necessary in the contexts of healtheffective communication has been provided. Ef- care, law enforcement, and the courts. Another question is how an entity should determine 171 Duffy v. Rive land, 98 F.3d 447, 455-56 (9th Cir. 1996). whether the interpreter is qualified, once it has The plaintiff, a deaf Washington State prisoner, sought a been determined that an interpreter is required. certified interpreter for disciplinary and classification hearings he was involved in. Id. at 450. The interpreter provided The Ninth Circuit considered this question in had no training in sign language. Rather, she was a correc- Duffy u. Rive land. The court relied on the plain tional mental health officer who learned to sign from her language of the regulationsl" to find that an parents. The court noted that these facts raised questions interpreter did not necessarily have to be certi- regarding her accuracy and impartiality, both of which are material to the definition of "qualified interpreter" in the ADA regulations. It, therefore, reversed the district court's grant of summary judgment for the State on the plaintiffs ADA claims and remanded the case for trial. Id. at 456, 458. 172 Wodatch Unknown #2 letter. 167 28 C.F.R. § 35.160(6)(2)(1997). 179 Stewart B. Oneglia, Chief, Coordination and Review Sec- 168 Id. §§ 35.161-163. tion, CRD, DOJ, Policy Unknown letter, Minneapolis, MN, 169 Id. § 35.163(a),(b). no date, re: Accessibility (hereafter sited Oneglia Unknown 179 Id. § 104 (1997) defines "qualified interpreter" as "an MN policy letter). interpreter who is able to interpret effectively, accurately, 174 Deval L. Patrick, Assistant Attorney General, CRD, DOJ, and impartially, both receptively and expressively, using Policy letter to Trent Lott, U.S. Senate, Washington, DC, no any necessary specialized vocabula:y." date, re: Accessibility (hereafter cited as Lott Policy letter). 54

64 fective communication also may be provided by The device was provided. The defendant did not make making available tape-recorded versions of the use of the device and wrote back to the judge, "still program, or by making available persons who need interpreter." The judge did not inquire why the can read programs to individuals with visual defendant felt that he still needed an interpreter, and impairments.'" proceeded with the trial, feeling.. .that they had made reasonable attempt to provide an accommodation, and that the final choice as to what accommodation would Forms of Communication be provided resided with the governmental agency. Interpreters [The defendant could not use the assistive listening It appears that public entities often fail to device because of the severity of his hearing loss. The provide sign language interpreters forpersons defendant was found guilty.]77 with hearing disabilities as required under title II of the ADA.176 One advocate recounted theAdvocacy groups are attempting to educate pub- following anecdote: lic entities about their obligation under title II of the ADA to provide auxiliary aids such as inter- Our technical assistance hot line received a call in 1995 preters.178 It appears, however, that this isan from a court in California with the question, "Were wearea in which additional outreach and enforce- wrong?' Apparently, a defendant who was deaf was ment efforts by the Department of Justice would arrested. When he arrived in court, he wrote a note to the judge asking for the reasonable accommodation of be beneficial. an interpreter. The judge, aware that the county had just purchased an assistive listening device system, TDD Services ordered the clerk to provide the device to the defendant. For most public facilities the ADA standards only require the provision of a public TDD when the facility provides four or more publicpay 175John R. Dunne, Assistant Attorney General, CRD, DOJ, Policy letter to Alan Wheat, U.S. House of Representatives, telephones.179 Pay telephones installed on city Washington, DC, no date, re: Accessibility (hereafter cited as property constitute a service provided by the Wheat policy letter). city. Thus, the city, not the telephone company, 178See Eichenauer letter, p. 3 ("Dental, as well as large is responsible for the cost of any requiredacces- medical providers, have been hesitant to provide sign lan- sibility changes, such as replacing standard guage interpreters.. . . Many places state that they have telephoneswithamplifiedmodelsor only enough money to pay for two interpreters a year."); coin- Martin letter, enclosure, p. 19 ("One of the most common operated TDD. However, the city could negotiate problems is the refusal of colleges and universities to pro- with the telephone company to perform TDD vide auxiliary aids such as readers, note-takers or sign lan- installations."'" guage interpreters."); Bower letter, enclosure, p. 5 ("The largest county court in Oklahoma refused to provide sign interpreters for a civil wedding ceremony.. . Since then another outlying district court has been reported to charge 177Martin letter, enclosure, p. 20. interpreters fees as costs to persons with disabilities in civil 178Ibid., enclosure, p.19; Bower letter, enclosure, p.5; actions.. .. Another metropolitan district court refused to Ringer letter, p. 6; Berliner letter, p. 5; Maes letter, enclo- provide effective accommodation to a man who could not sure, p. 8. hear the civil court proceedings."); Ringer letter,p.6 ("[A]mong locations where our office has intervened through 179Deval L. Patrick, Assistant General, CRD, DOJ, letter to advocacy include.. .several courts in south and north Geor- Kay Bailey Hutchinson, U.S. Senate, Dallas, TX, Dec. 28,

gia which were not providing sign language interpreters. . 1996, re: Accessibility, reprinted in 10 Nat'l Disability L. .[and] several law enforcement agencies. . .to provide sign Rep. (LRP) ¶ 200 (hereafter cited as Hutchinson letter). language interpreters in questioning a suspect."); Berliner 180 John L. Wodatch, Chief, DRS (formerly Public Access letter, p. 5 ("The elimination of communication barriers Section), CRD, DOJ, Policy letter to Camille Jones, Culver continues to be an area of on-going concern. This is espe- City Human Resources Department, Culver City, CA, Nov. cially critical with public schools, which often elect to avoid 19, 1993, re: Accessibility (hereafter cited as Jones policy providing any interpreter services for persons with hearing letter). The requirements for TDDs that are contained in the impairments. . .. The agency [also] has received complaints ADA Standards for Accessible Design are applicable only that the police and other emergency response personnel do when the public entity chooses to provide public telephones not provide sign language interpreters for persons with in new construction or alterations, or as "program accessi- hearing impairments."); Maes letter, enclosure, p. 8 ("We bility" if the public entity uses public telephones as part of have had a handful of cases regarding the lack of an inter- its programs. There is no "effective communication" re- preter for an individual who is deaf in an emergency room quirement to provide TDD-equipped public telephones. DOJ situation, in court, or in police custody."). Comments, July 24, 1998, p. 4.

55 Signage and Auxiliary Aids with hearing impairments or have charged fees The ADA also covers signs and other visualfor interpreters' services.185 For instance: aids to assist persons with disabilities. The ADA Accessibility Guidelines for Buildings and Facili- The largest county court in Oklahoma refused to pro- ties are specific about the dimensions of signs vide sign interpreters for a civil wedding ceremony. Our office filed a writ of mandamus at the Oklahoma Su- be andhowwrittendescriptionsshould preme Court to obtain compliance. Since then another placed.181 In one policy letter, DOJ explained outlying district court has been reported to charge inthat the standards require each fixed seat in anterpreters' fees as costs to persons with disabilities in assembly area be identified by a sign or marker. civil actions. . ..Another metropolitan district court In addition, facilities that must be identified as refused to provide effective accommodation to a man accessible under the standards must use the in- who could not hear the civil court proceedings. He had ternational symbol of accessibility.182 been participating through several hearings at the DOJ has stated that interpreters are not re- point he contacted our office. Our office intervened quired for all situations, and other auxiliary aids through negotiation and obtained a Real Time reporter may be adequate. DOJ wrote to one individual: so that he could hear the proceedings.186

In determining what constitutes an effective auxiliary This same advocate notes that although DOJ aid or service, covered entities must consider, amongofficials have been responsive when she has other things, the length and complexity of the com- sought assistance in title III cases, DOJ person- munication involved. A note pad and written materi- nel do not seem interested in taking on title II als may be sufficient means for short, uncomplicated cases.187 Since DOJ participation in titleIII communications. Where, however, the information tocases has led to quick compliance by commercial be conveyed is lengthy or complex, the use of an in- entities, she believes similar Federal attention in terpreter may be the only effective form of communi-title II cases would help reduce instances of non- cation. Use of interpreter services is not necessarilycompliance, such as those mentioned above.188 limited to the most extreme situations.183 Despite this policy guidance, some disability 911 Emergency Telephone Services rights advocates have said that DOJ needs to The titleII regulations expressly require provide clearer and more comprehensive guide-public entities to provide individuals who use linesforeffectivecommunicationrequire-TDDs direct access to emergency phone services ments.184 According to one State disability rights such as 911.189 The title II regulations also spec- advocate, State and local courts have refused toify that public entities must afford to TDD users provide sign language interpreters for personsan opportunity to benefit from their services that

185 Bower letter, p. 5. 186 Bower letter, p. 5. See also Lawrence Berliner, General Counsel, Connecticut Office of Protection and Advocacy for 181 28 C.F.R. pt. 36, app. A § 4.30 (1997). See also John R. Persons with Disabilities, letter to Frederick D. Is ler, Assis- Dunne, Assistant Attorney General, CRD, DOJ, Policy letter tant Staff Director, OCRE, USCCR, Apr. 20, 1998, pp. 4-5. to Scott Klug, U.S. House of Representatives, Madison, WI, ("The elimination of communication barriers continues to be Sept. 29, 1992, re: Accessibility. an area of ongoing concern. This is especially critical with 182 Janet L. Blizard, Supervisory Attorney, DRS, CRD, DOJ, public schools, which often elect to avoid providing any interpreter services for persons with hearing impairments.") Ac- lettertoMarioPimenta,ProductManager,Audito- rium/Theater Seating, Quakertown, PA, re: Accessibility, cording to DRS, DOJ did not receive any complaints alleging reprinted in 6 Nat'l Disability L. Rep. (LRP) II 26 (hereafter the described matters. DOJ Comments, July 24, 1998, p. 4. cited as Pimenta letter); 28 C.F.R. pt. 36, appendix A, §§ 187 Kayla Bower, Executive Director, Oklahoma Disability 4.1.2(7), 4.30.7 (1997). According to DRS, the seats that Law Center, telephone interview, Apr. 27, 1998 (hereafter must be marked are aisle seats with removable armrests. cited as Bower interview). DOJ Comments, July 24, 1998, p. 4. 188 Ibid. 183 Lott policy letter. 189 28 C.F.R. § 35.162 (1997). 28 C.F.R. § 35.161 provides 184 NIDRR, ADA Project Directors' responses ("The whole that where "a public entity communicates by telephone with issue of "effective communications" for Title II and Title III all applicants and beneficiaries, TDD's or equally effective entities needs more attention, guidance materials, and en- telecommunication systems shall be used to communicate forcement."). with individuals with impaired hearing or speech." 56

66 is equal to the opportunity afforded to others. In example, the State offers emergency poison con- September 1996, DRS began a special project introl information that cannot be accessed through conjunction with U.S. attorneys' offices nation-911, the telephone emergency service would wide to review the accessibility of 911 services. have to be equipped with a TDD to provide di- U.S. attorneys' offices were directed to initiate rect access for nonvoice callers.194 compliance reviews of and investigate com- In 1995, DOJ reached a formal agreement plaints regarding 911 providers in their districts. with the City of Chicago to provide 911 emergency DRS trained staff from each U.S. attorney's of-services to individuals with hearing or speech im- fice and monitors all of their investigations. A pairments. The agreement resolved three com- DRS trial attorney coordinates the project and plaints filed independently with DOJ by deaf in- supervises the work of the U.S. attorney staff. As dividuals who were unable to obtain urgent medi- a result of this project, the accessibility of more cal assistance by calling 911.195 The City of Chi- than 500 911 providers has been reviewed, and cago was directed to install TDD devices in its 911 non-ADA-complaint providers have been emergency center and train dispatchers in han- brought into compliance through settlement dling emergency calls from TDD users.196 agreements and letter agreements.199 The Civil Rights Division and the U.S. Attor- Through policy letters, DOJ has indicatedney's Office for the District of Arizona have filed that a State may use a 911 system that directsainicus curiae briefs at the district and appellate all emergency TDD calls through the 911 sys-court levels in a case alleging that the 911 system, as long as the system receives and proc- tem in Phoenix violated the ADA.197 In this case, esses nonvoice calls as effectively as voice calls; three deaf individuals alleged that the city re- nonvoice callers who are directed through thequired 911 callers using a TDD to activate an enhanced system receive attention as quickly asaudible tone (by pressing the space bar on the voice callers who dial local seven-digit numbersTDD) to indicate to the 911 operator that the rather than 911; and any emergency servicesincoming call was a TDD call. The court found provided by a State or local government entitythat this requirement violated the ADA because that are not connected to the enhanced systemit did not provide direct or equally effective ac- are directly accessible to nonvoice callers.191 cess to callers using TDDs because not all TDDs In addition, several public safety agencies ofgenerate tones, and it would be unfamiliar, and the same municipality may share a TDD for non- many times impossible, for a caller to press a key emergency calls, as long as this system works at repeatedly until recognize d.198 least as effectively for persons using the TDD DOJ regulations require that telephone emer- system as for those using seven-digit nonemer- gency services provide direct access to individuals gency calls.192 However, any emergency service provided by the State or local government entity modems. "Direct access" means that emergency telephone that is not tied to the 911 system would have to services can directly receive calls from TDD and computer provide direct access to nonvoice callers.193 If, for modem users without relying on outside relay services or third party services. Where 911 service is available, direct access must be provided to individuals who use TDDs and 199 Wodatch letter, Mar. 19, 1998, enclosure, "Preliminary computer modems. The requirement for direct access disal- Information Request for the Disability Rights Section, Sub- lows the use of a separate seven-digit number for person ject: Staff Training," Response to Question No. 1, p. 2; Staff, with hearing impairments where 911 service is available. DRS, CRD, DOJ, interview in Washington, Sept. 3, 1997, p. 194 Husted-Jensen letter. 4 (hereafter cited as DRS Staff September 1997 interview); DOJ Comments, July 24, 1998, p. 4. 199 DOJ, CRD, Enforcing the ADA. A Special Status Report from the Department of Justice (1995), p. 3. 191 John L. Wodatch, Chief, DRS (formerly the Public Access System), CRD, DOJ, letter to Nancy Husted-Jensen, Chair- 196 Ibid. person and State ADA Coordinator, Providence, RI, re: Ac- 197 Ferguson v. City of Phoenix, 931 F. Supp. 688 (1996); cessibility, reprinted in 5 NDLE ¶ 222 (hereafter cited as DOJ, CRD, DRS, Enforcing the ADA: A Status Report from Husted-Jensen letter). the Department of Justice (October 1995-March 1996) 192 Husted-Jensen letter. (hereafter cited as DOJ/CRD, ADA Quarterly Status Report (October 1995-March 1996)), p. 5. 193 28 C.F. R. § 35.162 (1997). See also Husted-Jensen letter. The regulation states that emergency services shall provide 199 Ferguson, 931 F. Supp. at 691-93; DOJ Comments, July direct access to individuals who use TDDs and computer 24, 1998, p. 5. 57

(3 P.7 who use TDDs and computer'inodems.199 The Ti- violate the ADA, since it would not constitute a tle II Technical Assistance Manual interprets and complete elimination of boxes. A significant num- elaborates on the regulations, stating that spaceber of alarm boxes would remain on the street, bar or additional dialing requirements are notand thus, the system would be "readily accessi- permissible.200 The city contended that since the ble," even if less accessible than previously. 911 system provided TDD callers "direct access" to In this case, the court ruled that the conver- the system, the "no space bar" requirement of the siontonew alarmboxesconstitutedan regulations was "arbitrary and capricious."201 The "alteration" of the public "facility" for reporting U.S. district court upheld DOJ's "no space bar"emergencies from the street. Based on the evi- interpretation, finding that it "reflects a reason-dence presented, the court found that the new able reading of the statute," and denied the city'sboxes did not provide adequate access for the motion for summary judgment.202 Although thedeaf and hearing impaired.206 In tests conducted plaintiffs had requested punitive damages, theby the defendants, the majority of calls using the court determined that there was insufficient evi-new boxes received no response (an 82 percent dence at this time to establish that the city inten-failure rate). Based on this failure rate, the court tionally violated the ADA and the Rehabilitationheld the new alarm box system was inaccessible Act.203 The court, therefore, denied the request, to and unusable by the hearing impaired and but noted that plaintiffs had not yet had their op-thus violated the ADA.207 The U.S. District portunity for discovery. Court for the Southern District of New York re- In another privately litigated case, individualsquired the defendants to convert all one-button with hearing impairments alleged that New Yorkemergency alarm boxes to two-button boxes but City violated title II of the ADA, the Rehabilita-did not require the restoration of boxes that had tiOn Act, and the equal protection clause of the been removed.208 Constitution by planning to replace two-button In 1997, DOJ intervened in Miller v. District street alarm boxes with one-button boxes to beof Columbia, a suit alleging that the District of used in conjunction with a protocol for tapping on Columbia 911 provider failed to respond to 911 a speaker by hearing-impaired individuals to in-calls made by TDD users. This case was settled dicate the type of emergency.204 The city also by consent decree.209 In 1997 and 1998, DRS and planned to install fewer new alarm boxes thanU.S. attorneys' offices have signed numerous had existed before.205 The court ruled that thesettlement agreements with 911 providers re- reduction in the number of alarm boxes did not quiring them to install additional TDD equipment, implement appropriate policies for recognition and handling of TDD calls, train person- 199 28 C.F.R. § 35.162 (1997). nel in these polices, and implement testing pro- 200 Ferguson, 931 F. Supp. at 694. grams for equipment and personnel. These 201 Id. 202 Id. at 695-96 (quoting Republican National Committee v. Federal Elec. Comm'n, 76 F.3d 400, 405 (D.C. Cir. 1996)). 203 Id. at 690. In this case, for the plaintiffs to receive compensatory damages, they had to demonstrate that the city 206 Id. at 359-62. engaged in intentional discrimination or deliberately disre- 207 Id. at 359-60. garded the plaintiffs' rights. The court ruled that the plain- 299 Id. at 363. Replacing all of the removed boxes would have tiffs had not proved intentional discrimination. Id. at 697. cost the city approximately $5.4 million. Id. at 362. The 204 Civic Ass'n of the Deaf of N.Y.C. v. Giuliani,. 970 F. Supp. court permitted plaintiffs to reapply for further relief if evi- 352, 354 (S.D.N.Y. 1997). DOJ was not a party to this lawsuit. dence arose that hearing impaired individuals had not been 205 Id. at 355-57. The two-button boxes contained a red but- appraised of the E-911 tapping protocol within 3 months or ton to be used in case of fire and a blue button to summon that dispatchers were not responding appropriately to tap- the police. Both the one- and two-button boxes had speakers ping calls. Id. at 363. through which users could communicate the nature of the 209 Wodatch letter, Feb. 6, 1998, enclosure, "Preliminary In- emergency. The protocol developed for hearing-impaired formation Request for the Disability Rights Section, Subject: individuals provided that a single tap on the mouthpiece of Complaints Processing, Response to Question No. 3." On April an Emergency Response System box signified a request for 14, 1998 the court issued a consent order in which the defen- the police, while a double tap indicated a request for fire dant will pay $15,000 in compensatory damages to each of the services. Id. at 356. two plaintiffs. DOJ Comments, July 24, 1998, p. 5.

58 agreements are the results of both complaintDOJ also has responded to inquiries on this is- investigations and complaint reviews.210 sue with policy letters. In addition, DOJ has is- DRS recently issued a new technical assis-sued technical assistance materials, such as its tance document, "ADA Access for 9-1-1 and Title II Technical Assistance Manual. Finally, Telephone Emergency Services," which provides and perhaps most important in terms of poten- specific guidance on how 911 providers musttial effect, DOJ has filed amicus briefs in cases comply with the ADA. Through this new guid-addressing title II and its availability as a cause ance, DOJ has indicated that telephone emer-of action for public employment discrimina- gency services must provide service that is astion.214 However, DOJ has not issued a formal effective for callers who use TDDs as it is forpolicy guidance that would benefit legal, investi- callers who use voice telephones, in terms of re-gative, and administrative staff in DRS, nor has sponse time and quality.211 it taken a consistent, active role in litigation on Despite DOJ's efforts, disability rights advo- this issue. cates have indicated that 911 operators continue to hang up on phone calls from persons using Relationship Between Titles I and II in TDDs.212 This could be avoided with further edu- Public Employment cation of 911 operators to recognize TDD calls. DOJ's earliest attempt to address the issue of public employment under title II was the drafting Public Employment of its ADA regulations. The proposed regulations Employment discrimination under title II is afor implementing the public employment provi- very important area of ADA law and policy insion of title II indicated that these regulations large part because of the numerous peoplewould be coextensive with EEOC's title I regula- working for State or local governments and thetions for private employment and labor unions. many facilities and services they provide. ToThis would have meant that DOJ would use the date, DOJ has addressed the issues surroundingtitle I regulatory provision that limited coverage title II's prohibition against discrimination in to public entities with more than 25, and later 15 public employment various ways. In its title IIemployees. In addition, DOJ would have had to regulations, DOJ included a provision expresslyfollow the same effective dates as title I, which banning discrimination in public employment.213went into effect on July 26, 1992, for employers with 25 or more employees and on January 26, 210 DOJ Comments, July 24, 1998, p. 5. 1994, for employers with 15 to 24 employees. However, DOJ received comments in response to 211 Ibid. its proposed rule objecting to this approach. 212 David Eichenauer, Access to Independence and Mobility, letter to Nadja Zalokar, Director, Americans with Disabili- Commentators in favor of broader coverage under ties Project, USCCR, June 4, 1998, p. 4; Michelle Martin, title II found that the proposed rule failed to rec- Staff Services Analyst, California Department of Rehabilita- ognize that Congress intended to establish non- tion, letter to Nadja Zalokar, Director, Americans with Dis- discrimination requirements in employment for abilities Project, USCCR, May 11, 1998, p. 21. all public entities, regardless of the number of 213 28 C.F.R. § 35.140 (a) (1997). The regulation provides that "[no] qualified individual with a disability shall, on the employees. They also stated that Congress in- basis of disability, be subjected to discrimination in em- tended the employment requirements of title II to ployment under any service, program, or activity conducted become effective at the same time that the other by a public entity." Id. In employment, a "qualified individual with a disability" is an employee or job applicant who meets legitimate skill, experience, education, or other requirements of an employment position that he or she holds or seeks. The person must also be able to perform the "essential" (as opposed to marginal or incidental) functions 28 C.F.R. § 35.104 (1997) (definition of "qualified individual of the position either with or without reasonable accommo- with a disability"). dation. Job requirements that screen out or tend to screen out people with disabilities are legitimate only if they are 214 The Title II Technical Assistance Manual and the arnicus job-related and consistent with business necessity. See DOJ, briefs provide policy guidance on employment. Between fiscal CRD, DRS, "Questions and Answers: The Americans with year 1992 and the end of fiscal year 1997 (Oct. 1, 1991 through Disabilities Act and Hiring Police Officers," (hereafter cited Sept. 30, 1997), DRS has been involved in 20 cases concerning as DOJ/CRD, "The ADA and Hiring Police Officers"); see also employment issues. DOJ Comments, July 24, 1998, p. 5. 59

BEST COPY AVAILABLE requirements of the title II regulations becameeach year. Of these, DRS litigates only about 5 effective, i.e., January 26, 1992.215 percent, resolving the others before litigation.221 DOJ's final title II regulations prohibit em- A deficiency in DOJ's approach to issues re- ployment discrimination within all activities ofgarding public employment is a lack of clear public entities and obligate State and local enti- guidance. For example, the applicability of title ties to institute nondiscriminatory employmentII to employment and its incorporation of the practices for persons with disabilities.216 Thetitle I employment standards caused confusion regulations also provide that the requirements ofin the early stages of implementation of the title I apply if the public entity is also subject toADA. In a request for information, a State gov- title 1.217 If the public entity is not also subject toernment questioned the effective date of the title Ibecause it employs fewer than 15 em-ADA's coverage of public employers. In response ployeesthe requirements of section 504 of theto this inquiry, DOJ prepared a policy letter Rehabilitation Act of 1973 apply to employmentwhich clearly stated that title II applies to em- discrimination claims.218 EEOC has litigationployment practices and activities of State and authority for all private employers under title I.local governments, that the provisions of title II However, with respect to employment with awent into effect on January 26, 1992, and that State or local government, DOJ is the only Fed-the title II regulations incorporate the standards eral agency that can litigate on behalf of thefor employment practices under title I. However, Federal Government.219 EEOC, therefore, playstitle I did not go into effect until July 26, 1992 a different role in the public employment setting, for employers of 25 or more employees, and much like the one assumed by the other desig-January 26, 1994 for employers of 15 to 24 em- nated agencies under title II, in that it must re-ployees. Thus, the DOJ policy letter stated that fer such cases to DOJ for litigation. "until title I becomes effective for an employer, EEOC, like other designated agencies underthe standards for employment practices under title II, investigates a charge of discrimination.title II will be the same as those under section If a violation is found, EEOC attempts to obtain 504 of the Rehabilitation Act."222 a negotiated settlement. Thus, some public em- DOJ's Title II Technical Assistance Manual ployment cases are settled before DOJ gets in- also states clearly that title II "prohibits all pub- volved. If EEOC cannot obtain voluntary com-lic entities, regardless of size of workforce, from pliance in a case against a public employer, itdiscriminating in their employment practices can refer the case to DOJ to litigate.220 DRS es- against qualified individuals with disabilities."223 timates it receives about 75 referrals from EEOCHowever, guidance provided jointly by EEOC and DOJ does not clearly explain the distinction between title I and title II. In their technical assistance document, "Americans with Disabilities Act: Questions and Answers," EEOC and DOJ 215 28 C.F.R. pt. 35, app. A § 35.140 (1997); U.S. Equal Em- provide the following question and answer: ployment Opportunity Commission and the U.S. Depart- ment of Justice, Americans with Disabilities Act Handbook, Q: What employers are covered by title I of the ADA, (undated) p. 11-54 (hereafter cited as EEOC and DOJ, ADA Handbook). and when is the coverage effective? 216 28 C.F.R. § 35.140 (a) (1997). 217 Id. § 35.140(6)(1). Title I applies to public, as well as private, employers who have 15 or more employees for 20 or 221 John Wodatch, Chief, DRS, CRD, DOJ, letter to Freder- more calendar weeks in the current or preceding year. See ick D. Is ler, OCRE, USCCR, June 3, 1998, DRS Response to 42 U.S.C. § 1211(2),(5) (1997). Commission's Information Request, p. 10. 218 28 C.F.R. § 35.140(b)(2) (1997). 222 Joan A. Magagna, Deputy Director, Office on the Ameri- 219 See Wodatch letter, Mar. 19, 1998, enclosure, "Subject: cans with Disabilities Act, DOJ, letter to James D. Harris, Mission, Function, Responsibilities, Planning, Organization, Deputy Attorney General, Department of Law and Public Staffing and Budget, Disability Rights Section Response to Safety, Office of the Attorney General, Legal Affairs, Tren- Request for Documents No. 1," pp. 1-2. ton, NJ, June 4, 1992, reprinted in 8 Nat'l Disability L. Rep. 229 DRS Staff November 1997 interview, p. 3 (statement of (LRP)i 374. John Wodatch). 223 DOJ, Title II Technical Assistance Manual, p. 19.

7 0 A: The Title I employment provisions apply to private ployment; public employment is not mentioned employers, State and local governments, employment in the resource list.229 agencies, and labor unions. Employers with 25 or more employees were covered as of July 26, 1992. Title II as a Basis for Public Employers with 15 or more employees were covered two years later, beginning July 26, 1994.224 Employment Discrimination Cases A 1998 news article, which summarizes the Nowhere in this statement do the agencies sayEleventh Circuit's recent decision on whether that State and local government employmenttitle II allows an action for employment dis- practices are subject to title II as well as title I.crimination,230 states that "while Title I of the Further, in the section of the document that pro-ADA expressly prohibits employment discrimi- vides information on State and local govern-nation on the basis of disability, Title II of the ments, no mention is made of the employmentact provides that a qualified individual with a provisions of title 11.226 Similarly, DOJ's techni-disability should not be excluded from participa- cal assistance document on hiring police officerstion in or denied the benefits of services, pro- mentions neither title I nor title 11.226 grams, or activities of a public entity."231 The In addition, the section-by-section analysis ofarticle infers that title II should cover employ- the title I regulations in the Americans withment discrimination, although it states that it is Disabilities Act Handbook is not clear on the ap- "troubling" that Congress did not specifically plicability of title I to State and local govern- mention "discrimination in employment" in title ments. The document states, "all State and local II itself.232 governments are covered by title II of the ADA However, another news article states that whether or not they are also covered by [titleeven without explicit language regarding em- I]."227 This part of the handbook does not discussployment discrimination intitleII,thereis under what circumstances, if any, public em-enough support from the ADA statute, DOJ's ployment falls under title I. The section by sec- implementing regulations, and caselaw to allow tion analysis of title II states: "If a covered entity a cause of action for employment discrimination is not covered by title I, or until it is covered by under title II. The article took issue with a dis- title I, subparagraph (b)(2) [of the regulations] trict court's ruling233 that no employment cause cross-references section 504 standards for whatof action exists under title II. The article main- constitutes employment discrimination."228 Fromtained, for example, that "civil rights statutes this it may be inferred that the employmentlike the ADA are to be liberally construed, and practices of State and local governments are cov-there is nothing in the text barring employment ered by both title I and title II, yet it is notclaims under title II."234 clearly explained. Further, in the resource list attached to the handbook, readers are referred 229 Ibid., "Resource List," p. 1. Pursuant to Executive Order to EEOC (not DOJ) for questions regarding em- 12067, EEOC is responsible for developing regulations and policy guidance, and providing technical assistance with respect to all of the Federal civil rights statutes that apply to employment. Therefore, DOJ defers to EEOC for technical assistance on employment policy. DOJ Comments, July 24, 1998, p. 5; Exec. Order No. 12067, 3 C.F.R. 206 (1978). 224 U.S. Equal Employment Opportunity Commission and 238 Bledsoe v. Palm Beach City Soil & Water Conservation U.S.DepartmentofJustice,CivilRightsDivision, Dist., 133 F.3d 816 (11th Cir. 1998). "Americans with Disabilities Act: Questions and Answers," 231 "Title II Covers Employment, Court Says," Americans (1995) (hereafter cited as EEOC and DOJ, ADA. Questions with Disabilities Act Manual (BNA), vol. 7, no. 3 (Feb. 12, and Answers). 1998), pp. 1, 14. 225 See ibid. 232 Ibid., p. 14. 226 See DOJ, CRD, DRS, "Questions and Answers: The 233 Bledsoe v. Palm Beach City Soil & Water Conservation Americans with Disabilities Act and Hiring Police Officers," Dist., 942 F.Supp. 1439 (S.D. Fla. 1996), rev'd, 133 F.3d 816 Mar. 25, 1997. (11th Cir. 1998). 227 EEOC and DOJ, ADA Handbook, p. 1-23 (emphasis 234 "No Employment Cause of Action Under ADA Title II, added). Court Says," Disability Compliance Manual (LRP), vol. 8, 228 Ibid., p. 11-55. iss. 14 (Jan. 6, 1997), p. 9.

71 The main issue in title II employment litiga-plaintiff brought his claim under title I or title II tion has been whether or not title II even coversof the ADA, he must comply with the requirement employment discrimination. Other issues alsothat individuals exhaust their administrative have emerged in the courts. These include the remedies before going to court.239 intent of Congress in creating title II, DOJ's in- The court noted that subpart F of the regula- terpretation of congressional intent in its title IItion governing title II of the act explains in de- implementing regulations, and whether the em- tail the jurisdiction over claims under the ADA ployment practices of State and local entities fallof both EEOC and the Department of Justice.249 exclusively under title I of the ADA, which spe-In holding that a public employee does not have cifically prohibits employment discrimination, orto exhaust administrative remedies (with EEOC also under title II of the ADA, which provides thator any other Federal agency) before bringing a all programs, services, and activities of public en- claim of employment discrimination under title tities are prohibited from any kind of discrimina-II of the ADA in Federal court, the court relied tion against persons with disabilities, includingon DOJ's section-by-section analysis of its regu- employment discrimination. There also is debatelations, which states clearly that "available ad- over when and how each title should be applied inministrative channels under title II of the Act employment discrimination cases. are optional and that plaintiffs may proceed di- In a 1993 case, Petersen v. University of Wis- rectly to Federal court if they choose to do so."241 consin Board of Regents,235 the U.S. District Court for the Western District of Wisconsin held that a former faculty member could bring an (Congress intended to cover the employment practices of all employment discrimination action under title II public entities, regardless of number of employees). of the ADA without first exhausting administra- 239 The court noted that it was unclear from defendant's briefs whether it contended that plaintiff was precluded tive remedies that apply to title I claims. The from bringing a claim under title II, because his claim also defendant alleged that the claim must be filed fell under title I. The court disregarded this line of argu- first with the EEOC. The court relied on DOJ ment, because the defendant provided no support for the regulations interpreting title II, which specifi- position and "because there is no language in the statute or regulations that would sustain such a position." The court cally provide that although Federal agencies are stated that "the core of defendant's argument is that available to hear claims under the ADA, title II whether plaintiff brings his claim under Title I or Title II, litigants are not required to file first with these he must comply with the administrative requirements of agencies before bringing suit.236 Title I." Therefore it addressed only "whether plaintiff must In the suit, the plaintiff alleged that the defen- exhaust his administrative remedies" before bringing suit under title II. 818 F.Supp. at 1278. Title I adopts the proce- dant terminated his employment in violation of dures set forth in title VII of the Civil Rights Act of 1964 the ADA "when it refused to renew his employ- requiring exhaustion of administrative remedies by filing ment contract, refused to give him a merit raise, charges with the EEOC. 42 U.S.C. § 12117(a) 1994). Title II refused to restore certain employment duties, and adopts the remedies, rights, and procedures of section 504 of the Rehabilitation Act of 1973, which does not require the created a hostile work environment because his exhaustion of administrative remedies and allows a plaintiff physical disability required an accommodation of to file a claim directly with a Federal court. 42 U.S.C. § an 80 percent appointment."237 Although the 12133 (1994). The defendant nevertheless cited a DOJ regulation implementing title II as authority for imposing plaintiff could have brought his claim under title I the procedural requirements of title I on all plaintiffs at- of the ADA, he chose to bring his claim under title tempting to bring a title II claim against a public entity that 11.239 The defendant contended that whether the is also subject to the requirements of title I. 818 F.Supp. at 1280. The court noted that 28 C.F.R. § 35.140(b)(1) provides: "For the purposes of this part, the requirements of Title I of 235 818 F. Supp. 1276 (W.D. Wis. 1993). the Act, as established by the regulations of the Equal Em- 238 Id. at 1279-80. ployment Opportunity Commission in 29 C.F.R. part 1630, 237 Id. at 1276. apply to employment in any service, program, or activity conducted by a public entity if that public entity is also sub- 238 Id. at 1276-78. Title I covers private and public employ- ject to the jurisdiction of Title I." Id. (quoting 28 C.F.R. § ers who have 15 or more employees for 20 or more calendar 35140(b)(1)). weeks in the current or preceding year. See 42 U.S.C. §§ 12111(2), (5) (1994). Title II covers all public entities, 240 818 F. Supp. at 1279 (citing 28 C.F.R. §§ 35.170.178). regardless of the number of employees. See id. §§ 12131(1), 241 Id. at 1279-80 (citing 28 C.F.R. pt. 35, app. A,Subpart F 12132 (1994); 28 C.F.R. pt. 35, app. A § 35.140 (1997) & § 35.172; H.R. Rep. No. 485(11), 101st Cong., 2d Sess., at 98 62

72 Thus, the defendant's motion to dismiss theAppeals for the Eleventh Circuit held that the plaintiffs complaint was denied. district court "improperly found that title II does One of the most noted cases filed under title IInot encompass employment discrimination."246 with respect to employment is Bledsoe v. PalmThe court based its holding on the statutory lan- Beach Soil and Water Conservation District.242 Inguage of title II, the legislative history of the this case, a Federal district court in Florida ruledADA, DOJ's title II regulations, and a review of that title II did not provide a cause of action forcourt decisions from across the country. The employment discrimination. However, the U.S. court stated: Court of Appeals for the Eleventh Circuit decided that the employee could sue his municipal em- The statutory language used by Congress in the crea- ployer for employment discrimination under title tion of Title II is brief. Extensive legislative commen- II and reversed the district court's grant of sum- tary regarding the applicability of Title II to employment discrimination, however is so pervasive as to belie mary judgment for the defendant.243 any contention that Title II does not apply to employ- Bledsoe filed suit against the Palm Beach Soil ment actions. .. .Accordingly, employment coverage is and Water Conservation District and Palm clear from the language and structure of Title 11.247 Beach County, alleging that both of these entities were his "employer" within the meaning ofThe court also noted that while coverage under title I of the ADA and the Rehabilitation Act and title II may not be explicit, Congress "specifically had violated his rights protected by the acts. The provided" that DOJ should write regulations im- plaintiff alleged that he had a disability withinplementing titleII's prohibition against dis- the meaning of the law, that the defendants had crimination,248 and that the Attorney General failed to accommodate his disability, and that should issue regulations "setting forth the forms the defendants discharged him as a result of the of discrimination prohibited. "249 disability. The court determined that Palm A significant body of caselaw, as well as Beach County was not the plaintiffs employerDOJ's interpretation of the statute, is in accord and granted summary judgment for the countywith the Bledsoe court's holding that title II cov- on all claims. Because the Palm Beach Soil anders employment discrimination.250 For example, Water Conservation District did not have thein Holbrook v. City of Alpharetta, the complain- number of employees to effect coverage under title I of the ADA,244 Bledsoe sought to amend the complaint to bring his complaint under title 246 Id. at 819. II, and the Soil and Water Conservation District 247 Id. at 821-22. filed a motion for summary judgment, arguing 248 Id. at 822 (citing 42 U.S.C. § 12134). that title II of the ADA does not apply to dis- 249 Id. at 822 (citing H.R. Report No. 101-485 (III), 101st crimination in employment.245 Cong. 2d Sess., at 52 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 473). In citing the title II regulations, the court noted that The district court entered summary judgment 28 C.F.R. § 35.140 (a) specifically addresses employment dis- for the Palm Beach Soil and Water Conservation crimination by pubic entities. It also stated that Congress had District on Bledsoe's claims under both the ADA not modified the regulations promulgated by the Attorney and the Rehabilitation Act. Bledsoe appealed the General. The court noted that Congress is deemed to know the executive and judicial gloss given to certain language and thus decision. In its review of the case, the Court of adopts the existing interpretation unless it affirmatively acts to change the meaning. Bledsoe, 133 F.3d at 822 (quoting (1990); S. Rep. No. 116, 101st Cong., 1st Sess. at 57-58 (1989); Florida Nat'l Guard v. Federal Labor Relations Auth., 699 DOJ, CRD, Title II Technical Assistance Manual, p. 48). F.2d 1082, 1087 (11th Cir. 1983)). 242 942 F.Supp. 1439 (S.D. Fla. 1996), rev'd, 133 F.3d 816 258 The Bledsoe opinion is the only circuit court decision to (11th Cir. 1998). date directly on point. As the Bledsoe court noted, two prior 243 Id. decisions implied, but did not hold, that title II creates a cause of action for employment discrimination. 118 F.3d at 244 The term employer under title I is defined as "a person 820 (citing Holbrook v. City of Alpharetta, Ga., 113 F.3d, engaged in an industry affecting commerce who has 15 or 1522, 1528-29 (11th Cir.1997); McNely v. Ocala Star- more employees for each working day in each of 20 or more Banner, Corp. 99 F.3d 1068, 1073 (11th Cir. 1996), cert de- calendar weeks in the current preceding calendar year. .. ." nied, 117 S.Ct. 1819 (1997)). For an extensive list of district 42 U.S.C. § 12111(5) (1994)). court decisions holding that title II encompasses employ- 245 Bledsoe, 133 F.3d at 818. ment discrimination, see Bledsoe, 133 F.3d at 820 n. 4.

7 3 BEST COPY AVAILABLE ant, a police detective who suffered from diabe-of Hartford, the court ruled that although a tes and a lack of visual function in one eye, al-"plain reading" of title II does not reveal whether leged discrimination on the basis of disability bytitle II covers employment discrimination, the the police department's refusal to assign him fullregulations and the legislative history make it duties and failure to accommodate his disability.clear that titleII prohibits employment dis- He filed under title II of the ADA. The districtcrimination by public entities.256 court dismissed the title II claim.251 However, DOJ also has interpreted title II as covering the Eleventh Circuit Court of Appeals stronglyemployment discrimination. A complaint filed by implied that title II does prohibit employmenta patrol officer alleged that the Denver Police discrimination against individuals with disabili-Department terminated him because of his dis- ties and incorporates the same prohibitions con-ability and failed to reassign him to a vacant po- tained under title I regulations. The court held, sition for which he was qualified. DOJ found the however, that because theplaintiff allegedemployer, the City and County of Denver, vio- claims that occurred before July 26, 1992, the lated title II by its failure to provide a reassign- effective date for title II, his title II claims mustment or transfer as a reasonable accommodation be analyzed under the Rehabilitation Act.252 and by terminating him from the police depart- Similarly, in Baxter Ethridge v. State of Ala- ment.257 In its analysis, DOJ concluded that un- barna,253 the plaintiff, who was a police officer, der title II of the ADA, reassignment to a vacant alleged that the Southwest Alabama Policeposition is a right of qualified individuals with Academy disqualified him on the ground that hedisabilities and is permitted as a form of reason- was unable to perform the minimal qualificationable accommodation. DOJ concluded the city's exercises because of a disability in his rightfailure to consider a reassignment or transfer hand. The plaintiff did not specify in his com-option for the police officer violated title II of the plaint under which title he was proceeding. TheADA.258 Based on the information provided by defendant filed a motion for summary judgmentthe city, DOJ also concluded the policies and arguing, in part, that the City of Slocumb Police procedures implemented with regard to police Department was not subject to the ADA because officers with disabilities no longer able to "carry it had fewer than the 25 employees required byout forcible arrest" discriminate against such title 1.254 The plaintiffs brief opposing summary officers and, thus, violate title 11.259 judgment argued that he had a valid cause of action under title II. The district court denied the defendant's motion for summary judgment, finding that although a "plain reading of [the relevant provision in title II] does not reveal whether it covers employment discrimination," 256 959 F. Supp. 125;, 132-33 (D. Conn. 1997) (citing Eth- the legislative history, DOJ regulations inter- eridge v. Alabama, 847 F.Supp. 903, 905-06 (M.D. Ala. preting title II, and the decisions of other courts 1993)). make clear that title II prohibits employment 257 Merrily A. Friedlander, Acting Chief, Coordination and Review Section, CRD, DOJ, letter to Wellington E. Webb, discrimination by public entities on the basis of Mayor of the City and County of Denver, Colorado, Aug. 22, disability.255 In another case, Hernandez v. City 1994 (hereafter cited as Friedlander letter). 258 The Department of Justice adopts this legal standard from EEOC's interpretive guidance on title I of the ADA, 29 C.F.R. pt. 1630, app. A, § 1630.2(o) discussing reasonable 251 112 F. 3d 1522, 1528-29 (11th Cir. 1997). accommodation and the Senate Labor and Human Re- 252 Id. at 1522, 1528-29. sources Committee Report on the Americans with Disabili- ties Act of 1990, which states: "Ulf an employee, because of 253 847 F. Supp. 903, 904-05 (M.D. Ala. 1993). disability, can no longer perform the essential functions of 254 Ethridge at 904-05 (citing 42 U.S.C. § 12115(A) defining the job that he or she has held, a transfer to another job for "employer" under title I of the act). which the person is qualified may prevent the employee 255 Ethridge, 847 F. Supp. 903, 905-06, 908,summ. judg- from being out of work and the employer from losing a valu- ment granted defendant,860 F.Supp. 808 (M.D. Ala. 1994) able worker." Friedlander letter (citing S. Rep. No. 116, (plaintiff unable to perform "essential function of job and 101st Cong., 1st Sess., at. 129-130 (1989)). thus not a "qualified individual with a disability"). 259 Friedlander letter. 64

74 TitlePolicy and Enforcement in Specffic Contexts

As discussed in the previous chapter, DOJtity, or be subjected to discrimination by any develops title II policy primarily through its en-such entity."2 DOJ's implementing regulations forcement and technical assistance activities.elaborate upon this nondiscrimination require- The general provisions of title II, subtitle A, ofment, stating that a public entity may not the Americans with Disabilities Act are applied"[a]fford a qualified individual with a disability in many contexts. In the area of law enforce-the opportunity to participate in or benefit from ment, for example, compliance with title II af-the aid, benefit, or service that is not equal to fects how officers interact with the general pub- that afforded others."3 DOJ further stated that lic as well as how law enforcement agencies treat"a public entity may not deny a qualified indi- current and potential employees. Courts mustvidual with a disability the opportunity to par- accommodate those with disabilities who enterticipate in services, programs, or activities that them, whether as officers of the court, witnesses, are not separate or different, despite the exis- defendants or members of the observing public.tence of permissibly separate or different pro- Title II also influences the investigative proce-grams or activities."4 dures State licensing agencies use to certify new Because they are both employers and service professionals. These and other activities are dis-agencies, law enforcement and emergency serv- cussed below. ices operations have two major concerns in complying with the ADA: employment policies and Law Enforcement and practices (including hiring and termination) and Emergency Services customer service. How these agencies carry out Law enforcement and emergency servicestheir responsibilities under title II depends on typically are operated by State and local gov- several factors, including staff knowledge of and ernments and therefore fall within the ambit oftraining on the ADA, specifically title II; DOJ title II, subtitle A. Title II of the ADA prohibitsefforts to disseminate information about title II; discrimination against individuals with disabili-access to DOJ information sources such as toll- ties by public entities, including State and localfree numbers, responses to information requests, governments,theiragencies,offices,depart- and Internet access to information about DOJ ments, and all other State or locally run or and the ADA; and written guidance provided by funded entities.' The statute provides that "noDOJ to State and local government agencies. qualified individual with a disability shall, by Disability professionals informed the Commis- reason of such disability, be excluded from par- sion of a number of instances where law enforce- ticipation in or be denied the benefits of the services, programs, or activities of a public en- 2 Id. § 12132 (1994). 3 28 C.F.R. § 35.130(b)(1)(ii) (1997). I See 42 U.S.C. § 12131(1) (1994). 4 Id. § 35.130(b)(2) (1997). 65

75 ment agencies were not in compliance with title Law Enforcement II. One disability professional indicated that her Discrimination by Law Enforcement Personnel office has dealt with a "handful of cases regarding DOJ has produced a significant amount of the lack of an interpreter for an individual who is technical assistance materials on discrimination deaf in an emergency room situation, in court, orby law enforcement personnel but has not liti- in police custody."5 Another wrote of a number ofgated many title II cases in this area. However, violations of title II by law enforcement agencies.a review of the caselaw on title II and law en- The agency intervened in several instances to en-forcement agencies reveals that DOJ has been sure that law enforcement agencies "had policiesinvolved either as an arnicus curiae or as a and procedures to provide sign language inter-plaintiff in cases dealing with crucial law en- preters in questioning a suspect who uses signforcement issues such as effective communica- language."8 Her agency also was called upon totion and accessibility, particularly in the context educate several law enforcement agencies aboutof arrest and transport to jail. the right of persons with disabilities to enter res- One case that illustrates problems in effective taurants with service dogs.? Another disabilitycommunication between law enforcement offi- professional wrote about a law enforcementcials and individuals with disabilities involved agency that failed to afford police protection to athe arrest of a deaf man in Maryland. In the case residential care facility housing individuals withof Rosen v. Montgomery County, Maryland,'° mental illness.8 The Commission also receivedcounty police arrested a deaf man for drunk information that law enforcement agencies con- driving. He alleged in his ADA claim that he was tinue to use blanket requirements that excludeunable to communicate effectively at the time of individuals with hearing or vision problems fromhis arrest because the police officers did not pro- law enforcement jobs. The California Departmentvide him with a qualified sign language inter- of Rehabilitation reported: preter." In 1997, the Fourth Circuit Court of Appeals upheld the lower court's finding that We receive many calls from individuals who are pre- Rosen's claims under the ADA were not viable. cluded from participation in the law enforcement se- The court, referring to the language of the stat- lection process because of hearing and vision standards that seem arbitrary, at best. As far as we canute, found first that: ascertain, there are no discernible safety issues to justify the widespread use of these exclusions. While calling a drunk driving arrest a "program or activity" some of the criteria used in determining an individ- of the County, the "essential eligibility requirements" ual's fitness for duty as a law enforcement officer of which (in this case) are weaving in traffic and being makes sense and certainly takes into consideration intoxicated, strikes us as a stretch of the statutory safety issues, other criteria seem based on nothing language and of the underlying legislative intent.12 more than stereotype and prejudice. Rather than blanket exemptions, a case by case determination ofMoreover, the court stated that: eligibility should be instituted for all law enforcement agencies.9

Agency, letter to Nadja Zalokar, Director, Americans with 5 Amy Maes, Director, Client Assistance Program, Michigan Disabilities Act Project, USCCR, May 11, 1998, attachment, Protection and Advocacy Service, letter to Frederick D. Isler, p. 4 (hereafter cited as Martin letter). Assistant Staff Director, Office of Civil Rights Evaluation 10 151 F.3d 154 (4th Cir. 1997). (OCRE), U.S. Commission on Civil Rights (USCCR), Apr. 30, 1998, attachment, p. 8 (hereafter cited as Maes letter). 11 Id. at 156. 6 Joyce R. Ringer, Executive Director, Georgia Advocacy 12 Id. at 157 (citing Gorman v. Bartch, 925 F. Supp. 653, 655 Office, letter to Frederick D. Isler, OCRE, USCCR, Apr. 1, (W.D.Mo. 1996)). In Gorman, the court stated: "It strains the 1998, attachment, p. 5 (hereafter cited as Ringer letter). statute to talk about the Plaintiffs' eligibility' to be arrested and taken to jail or to participate in being arrested...." 925 7 Ibid. F.Supp. at 655; cf. Torcasio v. Murray, 57 F. 3d 1340, 1347 8 Kayla A. Bower, Executive Director, Oklahoma Disability (4th Cir. 1995) (the "terms 'eligible' and 'participate' imply Law Center, letter to Frederick D. Isler, Assistant Staff voluntariness on the part of an applicant who seeks a bene- Director, OCRE, USCCR, Apr. 6, 1998, attachment, p. 4. fit from the state; they do not bring to mind prisoners who 9 Michelle Martin, Staff Services Assistant, Department of are being held against their will."), cert. denied subnom., Rehabilitation, State of California Health and Welfare Torcasio v. Angelone, 516 U.S. 1071 (1996). 66

76 Rosen was in no way "denied the benefits of" his For example, in Gorman v. Bartch,15 a para- arrest. As far as the police officers were concerned, plegic who uses a wheelchair claimed that after Rosen adequately participated in the various tests he was arrested outside a Kansas City, Missouri, for intoxication, and the officers obtained the infor- bar, he was not provided with suitable transpor- mation they needed to complete the booking process. tation for someone with mobility impairments. Rosen was simply not "discriminated against" just He had been taken from his wheelchair and tied because he could not follow everything the officers were telling him.13 to a mesh panel behind the bench on which he was placed, and fell and was injured duringthe The Rosen case is instructive because it showsride to the police station. In this case, the plain- how court rulings have helped to shape standardstiff relied on the nondiscrimination provision of and requirements for State and local agencies'titleII, which states: "no qualified individual responsibilities under title II on specific issues.with a disability shall, by reason of such disabil- The Rosen court noted, for example, that: ity, be excluded from participation in or be denied the benefits of the services, programs, or If we assume that the police were required to provide activities of a public entity, or be subjected to auxiliary aids at some point in the process, that pointdiscrimination by any such entity."16 At trial, the certainly cannot be placed before the arrival at thecourt found, like the Fourth Circuit in Rosen, stationhouse. The police do not have to get an inter-that transporting validly arrested individuals preter before they can stop and shackle a fleeing bank did not constitute a program or activity under robber, and they do not have to do so to stop a sus- pected drunk driver, conduct a field sobriety test, and title II as it was envisioned by Congress.17 The make an arrest." court observed: to be protected [under title II], Plaintiff had to be a This observation makes logical sense and pro- "qualified individual with a disability," not simply a vides a specific answer to a question not ad-person with a disability. The term was specifically dressed in title II or its regulations. defined by Congress to describe a person who meets eligibility requirements for the receipt of services or Title II Litigation participation in programs. It strains the statute to A review of caselaw relating to charges of dis- talk about Plaintiffs "eligibility" to be arrested and crimination against law enforcement agencies taken to jail or to "participate" in being arrested.. shows that although DOJ has submitted amicus .had Plaintiff been arrested because he was handi- briefs and has joined in existing litigation, it hascapped, his arguments would more clearly satisfy the statutory requirements. ..a person who has been ar- not initiated litigation against a law enforcement rested "is not normally thought of as one who would agency under title II. However, judicial decisions have occasion 'to.. .meetthe essential eligibility re- are playing a key role in shaping title II law.For quirements' for receipt of or participation in the serv- example, several courts have confronted the is-ices, programs or activities of a public entity. The sue of whether the arrest and custody of people terms 'eligible' and 'participate' imply voluntariness with disabilities can be construed as a "benefit, on the part of an applicant who seeks a benefitfrom service, program, or activity" as these terms the state; they do not bring to mind [criminal sus- were envisioned by Congress in drafting title II. pects] who are being held against their will."...these If so, some courts have reasoned, then people terms are ill-fitting, at best, in the context of arrested with disabilities are entitled to accommodation by State and local law enforcement agencies during the arrest process. 16 925 F. Supp. 653, 654 (W.D. Mo. 1996), appeal dismissed without prejudice, 23 F. 3d 1126 (8th Cir. 1997). See also Torcasio v. Murray, 57 F. 3d 1340, 1347 (4th Cir. 1995) 13 Rosen, 151 F. 3d at 158. ("The terms 'eligible' and 'participate' imply voluntariness 14 Id. The court stated: "Rosen does not assert that better on the part of an applicant who seeks a benefit from the communication would have changed events one iota, and, in State; they do not bring to mind prisoners who are being the end, he is forced to fall back on his claim that he was held against their will."), cert. denied, 516 U.S. 1071, 133 L. 'humiliated and embarrassed.' But these are emotions expe- Ed. 2d 724, 116 S. Ct. 772 (1996). rienced by almost every person stopped and arrested for drunk driving. . .we cannot find an injury that would suffice 16 42 U.S.C. § 12132 (1994). to invoke the ADA's protections." Id. 17 925 F. Supp. at 658. 67 77 individuals, leading to the further conclusion that the In a more recent case involving the arrest ofa ADA does not apply to the case at bar.° person with a disability, the court came to the Gorman and Rosen take the position thatopposite conclusion. In Hanson v. Sangamon County Sheriff's Department, the plaintiff,a deaf being arrested and taken into custodyare notman arrested for possession of illegal drugs, services, programs,oractivities within the meaning of title II. However, in addressing fared much better than the plaintiffs in Rosen one and Gorman. The court addressed the issue of of the plaintiffs arguments, the Gorinan courtwhether a county sheriffs department violated cited a DOJ guideline published in 1980 whichtitle II when it "failed to provide Plaintiff with stated that when arresting a deaf or hearing- impaired person: any means with which to communicate with friends and/or relatives in order to post bond."23 the arresting officer's Miranda warning should be The court observed that: communicated to the arrestee on a printed form.. .where [there] is no qualified interpreter immediately In spite of his inability to use a conventional telephone available and communication is otherwise inade- and his requests for alternative assistance, the Sanga- quate. The form should also advise the arrestee that mon County Sheriffs Department failed to provide the law enforcement agency has an obligation under Hanson with access to an interpreter, to a text tele- Federal law to offer an interpreter to the arrestee phone device ("TDD"), or to a TDD directory. Through- without cost and that the agency will defer interroga- out the night, Hanson attempted to notify the officers of tion pending the arrival of an interpreter.° his need for alternative assistance in contacting friends and/or relatives, but it was to no avail.24 DOJ, in its ainicus brief in the Gorman case,20 argued that: (1) title II's broad application is suffi- The court found further that the sheriffs office cient in itself to encompass arrests by State and violated DOJ's regulations requiring communi- local law enforcement officers; (2) the legislative cation for people with disabilities that is as effec- history of title H and the preamble to DOJ's title tive as communication for those without disabili- II regulations specifically address arrestsas oneties.25 In addition, the court found that the sher- of the activities of public entities covered by titleiffs office took no steps to provide auxiliary aids II; and (3) the legislative history and thepream- and other services such as TDDs and qualified ble make clear that "Title II is intended to require interpreters.26 police departments to make reasonable modifica- The issue of arrest and custody procedures tions to their policies, practices, and procedures, involving people with disabilities appears to bea and to provide training to officers that will avoidcontroversial one. Interestingly, the Gorman discriminatory arrests of individuals with disabili-court attempted to evaluate carefully the mean- ties."21 DOJ's brief was not sufficient to persuadeing of such words as "program" and "activity," the Gorman court, even though itappears thatwhile the Hanson court simply took itfor the brief displays a far better understanding ofgranted that such activities were included under the purposes and goals of title II than the Gormanthe broad coverage of the statute with respect to court's decision.22 the actions of public entities. Regardless, DOJ, like EEOC with controversial title I issues, has been consistent in defending its positionon this issue. Based on this overview of DOJ's efforts 18 Id. at 655-656 (emphasis added, citations omitted). relating to title II's effect on law enforcement 18 Id. at 657 (citing 45 Fed. Reg. 37,620, 37,630 (1980) (DOJ activities, it appears that the Gorman case is final regulations under Rehabilitation Act)). perhaps the only case involving title II and law 20 See Memorandum of the United States as Amicus Curiae, enforcement policies and procedures in which Gorman v.Bartch, 925 F.Supp. 653 (W.D. Mo. 1996) (hereafter cited as DOJ Amicus Brief). 21 Id. at 3, Gorman. 23 Hanson v. Sangamon County SheriffsDepartment, 991 F.Supp.1059, 1061 (C.D. Ill. 1998). 22 DOJ also reminded the Gorman court that the preamble 24 Id. to its title II regulation states simply that "title II applies to anything a public entity does," Id. at 5 (citing 28 C.F.R. pt. 25 Id. at 1063 (citing 28 C.F.R. § 35.160(a) (1997)). 35, app. A § 35,102) (emphasis added). 26 Id. (citing 28 C.F.R. § 35.160(b) (1997)). 68

7 8 DOJ has intervened or filed an amicus brief.tion during arrests are among the most frequent Thus, this is an area where DOJ has done toolaw enforcement complaints that DRS receives. little litigation. Nonetheless, to DOJ's credit, theDRS and its grantees have produced much tech- Gorman ainicus curiae brief displays a morenical assistance to try to educate law enforce- thoughtful and deeper understanding of title II, ment personnel and eliminate such violations." as it relates to law enforcement, than the court DOJ's most comprehensive technical assis- reviewing the case. tance document specifically on law enforcement is 13 pages long and is presented in a question and Settlement Agreements answer format. It is written in direct, clear lan- DOJ has also successfully resolved law en- guage that conveys effectively the terms it defines forcement cases under title II by negotiatingand the issues it addresses. The document begins formal settlements. In a 1995 settlement agree-by asking the question, "What is the ADA?" and ment, the Alexandria, Louisiana, Police Depart- proceeds to discuss how the law affects "virtually ment agreed to adopt a policy to provide appro- everything that officers and deputies do," includ- priate auxiliary aids to persons with hearing im- ing: receiving citizen complaints; interrogating pairments to provide effective communicationwitnesses; arresting, booking, and holding sus- during arrest and other situations.27 Similarly, a pects; operating telephone ("911") emergency cen- settlement agreement reached in 1996 with theters; providing emergency medical services; and City of Ferris, Texas, provided for effective enforcing laws.31 communication in all interactions with the police This technical assistance document defines department.28 In another complaint about effec-the term "disability" under the ADA, and ex- tive communication, DOJ negotiated a settle- plains that someone stigmatized because of their ment agreement with the Wisconsin State Pa-association with a person who has a disability is trol, which allegedly had handled a traffic stop ofalso protected by the ADA. The document uses a deaf individual improperly. The settlementas an example a woman who calls for help from agreement required the State patrol to develop emergency services because she believes some- policy and procedures for effective communica-one may have broken into her home. However, tion, to train its officers on the policy and proce-the police discover that her residence is on a list dures, and to publicize the new policy.29 of addresses known to be the homes of people with AIDS. The woman's name is on the list be- Technical Assistance Materials cause her son has AIDS. The police refuse to re- DOJ is the Federal agency designated to en- spond to the call because they fear becoming in- force the ADA in the context of law enforcement, fected with the virus.32 This is an excellent ex- and DOJ has sought to improve understandingample of how the ADA can play a role in the eve- of title II as it relates to law enforcement agen- ryday work of police officers and why it is impor- cies through development and dissemination oftant for law enforcement professionals to under- technical assistance materials. The types of ADAstand the law fully, their rights and responsibili- violations in the law enforcement context ad-ties under it, and how the law is designed to dressed by DRS vary. For example, althoughchange the interaction between people with dis- DRS does not get many complaints about acces- abilities and those without. sibility issues in the context of law enforcement, This technical assistance document also ad- complaints about lack of effective communica- dresses common problems faced by law enforcement officers in their daily work, such as instances in which they could misconstrue the ac- 27 U.S. Department of Justice (DO,]), Civil Rights Division tions of individuals. The document includes the (CRD), Disability Rights Section (DRS, Enforcing the ADA A Status Report Update from the Department of Justice, January-March 1995, p. 5. 38 Philip Breen, Special Legal Counsel, DRS, CRD, DOJ, 28 DOJ, CRD, DRS, Enforcing the ADA- A Status Report from interview in Washington, DC, Apr. 15, 1998, p. 5. the Department of Justice, October-December 1996, p. 5. 31 DOJ/CRD, "Commonly Asked Questions About the ADA 28 DOJ, CRD, DRS, Enforcing the ADA. A Status Report and Law Enforcement," p. 1. from the Department of Justice, April-June 1997, pp. 6-7. 32 Ibid., p. 2.

69 79 following examples:(1)a mobility impairedthat is inaccessible to individuals with mobility driver who reaches behind her seat to get herproblems. Since the police department cannot assistive device for walking when an officer asks afford to alter all areas of the station because of her to step out of the car, which leads the officerinsufficient funds, to comply with title II it alters to believe she may be reaching for a weapon; (2) its lobby and restrooms so that areas of public individuals who are deaf, are hard of hearing, oruse are accessible. In addition, it takes measures have speech disabilities, whom officerserrone- to ensure that some of its daily functions, such ously believe are being uncooperative; (3) a deafas witness and victim interviews with individu- individual who continues to run when an officerals who have disabilities, are done at otherac- yells "freeze"; and (4) a driver with a neurologi- cessible buildings.36 cal difficulty that is causing him to slur his The technical assistance document on title II speech or stagger when he walks is assumed to and law enforcement also discusses the modifica- be drunk by a police officer. The document pro-tions of law enforcement policies, practices, and vides specific means for ensuring that these in-procedures required by the statute. It provides cidents are avoided, such as the use of hand sig-examples such as a department modifying a rule nals as an effective way to get the attention ofa that prisoners. cannot eat in their cells toac- deaf individual.33 commodate a diabetic who needs access to car- The document provides other valuable infor- bohydrates and sugar to keep blood sugar at an mation for law enforcement professionals suchappropriate level, or instead of handcuffing ar- as what procedures to follow in arresting andrestees behind their backs, handcuffing them in transporting an individual who uses a wheel- front so they can still write or sign.37 chair, steps officers can take to communicate In sum, DOJ has addressed a number of im- more effectively with someone who is blind orportant issues related to law enforcement in its visually impaired, and instructions for providingregulations, ainicus briefs, and technical assis- emergency medical services to people infectedtance materials. In the technical assistance with HIV. The document also describes lawen- documents it has prepared to date, DOJ has pro- forcement officers' duties with respect to know-vided useful information that can benefit and ing when a sign language interpreter is requiredexpand the knowledge of DOJ legal and investi- for a deaf person, how to find sign language in-gative staff, and State and local government offi- terpreters, what a TDD is and how to use one, cials, including police forces, schools, and other and when an officer would use assistive listening agencies. However, whether or not these docu- as a communication aid.34 ments are adequate to address real problems Other issues addressed include architecturalexisting between law enforcement officers and and program accessibility.35 This section of thepeople with disabilities in the communities they document provides information on the extent toserve remains unclear. Comprehensive policy which police stations, jails, and holding cellsguidance on specific title II issues (similar to must be accessible to persons with mobility dis-EEOC's title I guidance) would be an effective abilities. The document notes that for public en-means of conveying important information re- tities that cannot afford to make all of the al-lating to title II to DOJ investigative staff, State terations needed to make public buildings fully and local governments and their contractors, accessible, "undue burden" is an acceptable de- and the general public. fense. However, the document shows through examples that, even for towns or cities with lim- Discrimination Against Law Enforcement ited resources, it is possible to comply with title Personnel in Employment II by being creative. For instance, the document For law enforcement professionals with dis- gives the example of a small town police stationabilities, title II of the ADA has meant new protection in their jobs and greater flexibility to do their jobs. DOJ has recognized the importance of 33 Ibid., p. 3. 34 Ibid., pp. 6-9. 36 Ibid., p. 10. 35Ibid. 37 Ibid., pp. 11-12.

70 0 ensuring that law enforcement personnel andwhen an accommodation in an employee's present those seeking employment with law enforcement position is not possible, reassignment to another position must be considered. ...the fact that the com- agencies have access to information about how plainant may not meet the essential functions of a title II of the ADA can affect them, their cowork- patrol officer's job does not mean that the City's obli- ers, and their supervisors. As with other areas of gations under the ADA have been met. The statutory title II implementation and enforcement, DOJ obligation to "reassign" would have no meaning if it has addressed this issue in litigation, amicus only applied to those individuals who met the essen- curiae,investigation,letters of finding, and tial functions of the job they were occupying.42 technical assistance materials. The judge in this case decided in favor of the Title II Litigation plaintiff, ruling that the city could not force the DOJ recently won a title II case against the injured police officer to take disability retire- City of Denver in which a former police officerment. The court held that the City and County of was awarded $300,000 in damages.38 The police Denver's policy or practice barring the reas- department was alleged to have discriminatedsignment of police officers with disabilities to against a police officer who suffered from a spinalvacant positions for which they are qualified,dis- disc injury. The officer claimed that he did notcriminates against qualified individuals with receive reasonable accommodation for his disabil-disabilities. Under the ADA, the city is required ity and was later fired. He argued that the cityto assign the police officer to a different job as a violated his rights under title II of the ADA by notreasonable accommodation, provided that this providing a reassignment or transfer. According would not be an undue hardship.43 to the Disability Compliance Bulletin, DOJ originally sent the mayor of a 6-page letter recom- Technical Assistance Materials mending that the city enter into settlement nego- DOJ's technical assistance materials address tiations because its "failure to reassign [the offi- the topic of the ADA and employment of law en- cer] as a reasonable accommodation. ..and itsforcement personnel. For example, the Title II termination of him based on his disability consti- Technical Assistance Manual states that "title II tute violations of title II of the ADA."38 prohibits public entities, regardless of size of Despite DOJ's request, the case went to trial.workforce, from discriminating in their employ- DOJ first filed an ainicus curiae brief on behalfment practices against qualified individuals with of the police officer. It later intervened in thedisabilities."'" This includes all aspects of em- case as a colitigant.40 At trial, the city arguedployment, including recruitment, hiring, promo- that for the police officer to be a qualified indi-tion,demotion,layoff,compensation,fringe vidual with a disability under the ADA, "hebenefits, training, etc. The manual further states should be capable of performing the essentialthat title II of the ADA adopts the employment functions of the job of police person with an ac- standards of title I of the ADA.48 commodation, to that disability."41 DOJ argued that, under the ADA: 42 Ibid., pp. 4-5. 43 United States v. City and County of Denver, 943 F.Supp. 1304, 1310-14 (D.Colo. 1996) (granting summary judgment in part, denying summary judgment in part), injunction denied sub nom., 955 F. Supp. 110 (1997) (injunctive relief 38 DOJ, CRD, DRS, Enforcing the ADA: A Status Report denied because court had not yet identified class of indi- from the Department of Justice, October-December 1996, p. 2 viduals affected by discriminatory policy), request for eviden- 39 "City Must Reassign Injured Officer to Vacant Position, tiary hearing denied, 968 F. Supp. 549 (1997) (backpay with Jury Says," Disability Compliance Bulletin (LRP), vol. 8, iss. prejudgment interest and front pay for 2-year period 13 (Dec. 19, 1996), p. 4 (hereafter cited as "City Must Reas- awarded in lieu of reinstatement). sign Injured Officer"). 44 DOJ,CRD, DRS, The Americans with Disabilities Act: 49 See United States v. City and County of Denver, 927 F. Title II Technical Assistance Manual Covering State and Supp. 1396, 1397 (D. Colo. 1996) (U.S. authorized to initiate Local Government Programs and Services (1993),§ II- enforcement action against employer under ADA after indi- 4.1000 (hereafter cited as DOJ, Title II Technical Assistance vidual filed independent action). Manual). 41 "City Must Reassign Injured Officer," p. 4. 45 Id. § 11-4.3100.

71 DOJ also has prepared a technical assistancehis back, was on sick leave, and subsequently was document on the issue of public employmentremoved from his post as a patrol officer. DOJ's that includes hiring practices for law enforce-response to the complainant was that the em- ment personnel and the effects of title II. It is ployer, a county sheriffs office, was not in viola- written in question and answer format andpro- tion of the ADA. DOJ's letter explains that the vides information on such issues as who isa police officer's injury was a temporary impair- qualified individual with a disability, the ration-ment from which the officer had recovered and ale behind the ADA prohibition against medicalthus no longer presented an impairment ofa ma- examinations before a conditional offer ofem- jor life activity. For this reason, the complainant ployment, and illegal drug use.46 did not have a disability under the ADA.59 A few questions deal specifically with lawen- In addition, DOJ has addressed the issue of forcement hiring. For example, the documentlaw enforcement personnel in its policy letters. explains that under the ADA, police depart-For example, in response to a letter from Sen. ments are able to require job applicants to obtainTom Harkin requesting clarification on several medical certifications to perform physical fitness issues, DOJ states: and agility exams. The document explains that, as long as the medical certification is limited Under title II of the ADA, a State or local government only to indicating whether an individualcanmust operate its programs and activities so that, safely perform the job and does not containanywhen viewed in their entirety, such programs and medical information or explanations, it isper- activities are readily accessible to and usable by indi- missible under the ADA.47 viduals with disabilities. The concept of "program access" is discussed in sections 35.149 and 35.150 of In addition to this document, DOJ has pub- this Department's title II regulation, 28 C.F.R. Part lished and disseminated information in the form 35, and on pages 19-22 of the title II Technical Assis- of brochures, booklets, videotapes, and trainers' tance Manual (copies enclosed). As stated in section guides. Some of these documents are intended 35.150 (a) (3) of the title II regulation, a title II entity for police departments in their hiring of lawen- is not required to take any actions that it can demon- forcement personne1.48 Others are designedspe- strate would result in a fundamental alteration of its cifically to inform police officers about recogniz- services, programs, or activities, or in undue financial ing disabilities and the appropriate response and administrative burdens.51 when encountering individuals with disabilities in law enforcement situations.49 In this letter, DOJ also addresses the specific issue of using basement space for meetings and Investigations and Policy Letters training of police department employees. DOJ DOJ also has investigated complaints aboutstates that the employment provisions of title II employment of law enforcement personnel. Oneof the ADA apply to this issue and that such provisions defer to the title I regulations pub- investigation involved a police officer who injuredlished by the Equal Employment Opportunity Commission. DOJ notes that in this case the 48 See DOJ, CRD, DRS, "Questions and Answers: The public entity would be required to providea rea- Americans with Disabilities Act and Hiring Police Officers," Mar. 25, 1997 (hereafter cited as DOJ/CRD, "Questions and sonable accommodation to qualified individuals Answers: The ADA and Hiring Police Officers"). with disabilities, which is to be decidedon a 47 Ibid., p. 2. case-by-case basis. One reasonable accommoda- 48 Ibid. tion would be to relocate the training class toa 49 See DOJ/CRD, "Commonly Asked Questions About the ADA and Law Enforcement," DOJ/CRD, "Questions and Answers: ADA and Hiring Police Officers; Police Executive Research Forum, The Police Response to People with Mental Illnesses: Including Information on the Americans with Dis- 89 Steward B. Oneglia, Chief, Coordination and Review Sec- abilities Act Requirements and Community Policing Ap- tion, CRD, DOJ, letter to complainant, July 28, 1993. proaches, prepared under a grant from the U.S. Department 81 W. Lee Rawls, Assistant Attorney General, DOJ, letter to of Justice (Washington, DC: 1997) (hereafter cited as Police Tom Harkin, Chairman, Subcommittee on Disability Policy, Executive Research Forum, The Police Response to People Committee on Labor and Human Resources, U.S. Senate, with Mental Illnesses). Feb. 17, 1993, p. 1 (hereafter cited as Rawls letter). 72

82 location that is accessible to employees with mo- that was not accessible to the hearing impaired bility imp airments.52 violated title II of the ADA.56 The district court In Valle v. City of Chicago (1997),53 the courtagreed that the city was in violation of the ADA, was consistent with DOJ's determinationthatbut did not require the city to restore boxes that the EEOC title I regulations be followed in caseshad already been removed as part of a pilot pro- involving public employees. In this instance, the gram in those areas where accessible reporting court found that the plaintiffs case demon- alternatives were available.57 strated sufficient merit to proceed to trial. Sal- Similarly, a group of citizens alleged in Fer- vador Valle, a candidate for the position of policeguson v. City of Phoenix that the city's 911 sys- officer, argued that his condition, rhabdomyoly-tem violated the ADA because it required callers sis, in which heavy physical exertion causes ato activate an audible tone to notify the 911 op- breakdown of muscle tissue, substantially lim-erator that the call was a TDD call and should ited him in the major life activity of working.be transferred to the system's TDD device.58 Valle was hired as a probationary police officerHowever, not all TDDs have the ability to gener- but was terminated after failing to complete theate such a tone. The court denied the city's re- threshold requirement that officers be able toquest for summary judgment stating that the run 1.5 miles within a specified time.54In deny-city's 911 system denied access to individuals ing the employer's motion to dismiss the case,whose TDDs were incompatible with the sys- the court relied on EEOC's regulations to deter- tem.59 In this case, DOJ had filed an arnicus mine that the employee's impairment substan-brief in the District Court requesting mandatory tially limited him in the major life activity ofchanges to the city's911system to ensure effec- working and that the city's running requirementtive communication. DOJ subsequently filed an was not an "essential function" ofthe job foramicus brief in the Court of Appeals arguing purposes of determining whether theplaintiffthat compensatory damages may be awarded was a "qualified individual with adisability." under title II without showing that the city in- The court concluded that having adequatelytentionally discriminated against TDD users.60 stated a claim under the ADA, the issue wasIn 1997, DOJ also intervened in a lawsuit whether the specific running requirements of theagainst the District of Columbia which alleged training program were job related and consistentthat the District violated title II by failing to re- with business necessity.55 spond to 911 calls made by TDD users.61

Emergency Services Discrimination by Emergency Services Personnel Title II Litigation Title II of the ADA also applies to emergency 56 915 F. Supp. 622 (S.D.N.Y. 1996). 57 Id. at 639. In a subsequent proceeding, the city was en- services, where courts have generally supported joined to convert all one-button emergency alarm boxes to the plaintiffs. DOJ has had relatively little in- two-button boxes that were accessible to hearing impaired volvement in litigation in this area. As discussed individuals, but the court again refused to enjoin the city to in the previous chapter, DOJ has participated in restore all alarm boxes that were removed. 970 F. Supp. 352 cases involving equally effective communication (S.D. N.Y. 1997). in emergency services. For example, in The Civic 58 931 F. Supp. 688, 689-93 (D. Ariz. 1996). Association of the Deaf of New York City, Inc. v. 59 Id. at 694, 699. Giuliani, individuals with hearing impairments 60 DOJ, CRD, DRS, Enforcing the ADA. A Status Report alleged that a plan to replace city alarm boxes from the Department of Justice, January-March 1997, p. 5. 61 Ibid., p. 3. In granting DOJ's motion for summary judg- with a telephone emergency reporting system ment, the court held that the District of Columbia violated title II of the ADA by failing to provide emergency 911 services to callers using TDDs. Miller v. District of Columbia, 52 Ibid., p. 2. 983 F. Supp. 205, 205 (D.D.C. 1997). John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Isler, Assistant Staff 53 982 F. Supp. 560 (N.D., Ill. 1997). Director, OCRE, USCCR, July 24, 1998, Comments of the 54 Id. at 562. U.S. Department of Justice, p. 6 (hereafter cited as DOJ 55 Id. at 563-67 (denying motion to dismiss). Comments, July 24, 1998). 73 Technical Assistance Materials HIV/AIDS should be "treated just likeany other DOJ has prepared one technical assistancepersonrequiringmedicalattention."65The document on the subject of emergency services. Indocument notes further that "emergency medical its document on telephoneemergency services,service providers are required routinely to treat DOJ states that the ADA requires that telephoneall persons as if they are infectious for HIV, emergency services be directly accessible to indi- Hepatitis B, or other bloodborne pathogens, by viduals who use telecommunications devices forpracticing universal precautions," sincemany the deaf (TDDs) or who communicate viacom- persons may not know they are infected and be- puter modem. Direct access is defined as the abil-cause individuals are . not required to disclose ity to "directly receive calls from TDD andcom- such information.66 puter modem users without relying on State telephone relay services or third party services."62 InSettlement Agreements this document, DOJ also describes what is meant DOJ also has addressed emergency treatment by TDD, computer modem communication, andof persons who have or may have HIV/AIDS by telephone relay services. In addition, this techni- negotiating a settlement agreement in at least cal assistance document notes that public safetyone case. In 1994, DOJ resolved a complaint agencies are required to provide directaccess, against the City. of Philadelphia alleging that through a standard seven-digit telephonenum- emergency medical technicians (EMTs) had reber, to their emergency services.63 fused to assist an individual with HIV. In the The technical assistance documenton the ADA settlement agreement, the city agreed to provide and law enforcement also addressessome issuessensitivity training to all EMTs and firefighters. related to emergency services. The documentThe training also covered precautions to prevent states that police officers are required to ensurethe transmission of HIV/AIDS. In addition, the effective communication; however, theuse ofcity was required to pay $10,000' incompensa- communication aids depends on the nature of thetory damages and to provide a written apology to communication required and the needs of the in-the individual to whom serviceswere denied.67 dividual requesting such aids. For example, the ADA requires that consideration should be given Policy Letters to the expressed choice of the individual with the DOJ has addressed the issue ofemergency disability when determining thepurpose forservices, primarily 911 services and telecommu- which the communication aid is to be used. Ac- nications devices for the deaf, in policy letters. In cording to the technical assistance document, ifa letter to the Rhode Island Governor's Commis- the individual with a hearing impairmentex- sion on the Handicapped, the Chief of DOJ's pressly requests that a particular family memberPublic Access Section stated thatan enhanced not be asked to interpret (a child, for example),911 system may be used by a Stateas long as it police officers should defer to that request. How-meets three requirements. First, nonvoice calls ever, a family member may interpret for a deaf or must be processed as effectively as voice callsare hearing-impairedperson, "when the safety or wel-processed. Second, the system should respondto fare of the public or the person with the disability nonvoice callers as quickly as it does to voice is of paramount imp ortance."64 callers who dial the local seven-digit number. The technical assistance documenton theThird, nonvoice callers must have directaccess ADA and law enforcement also notes that into services provided by the State or localgov- providing emergency services,persons withernment that are not connected to the enhanced system.68 DOJ has provided extensive informa- 62 DOJ, CRD, DRS, "Commonly Asked Questions Regarding Telephone Emergency Services," December 1994,p.2 65 Ibid., p. 5. (hereafter cited as DOJ/CRD, "Questions Regarding Tele- phone Emergency Services." 66 Ibid., p. 5. 63 Ibid., p. 3. 67 DOJ, Enforcing the ADA. A Status Report from the De- partment of Justice, April 1994. 64 DOJ/CRD, "Commonly Asked Questions About the ADA and Law Enforcement," p. 6. 68 John L. Wodatch, Chief, Public Access Section, DOJ, letter to Nancy Husted-Jensen, Chairperson and State ADA 74

84 tion on emergency telephone systems in other the public, they are readily accessible to and us- policy letters as wel1.69 For example, in a letter able by individuals with disabilities."73 to Senator Hutchinson, DOJ stated that public facilities, such as libraries, are not required to Discrimination Against Emergency Services provide a public TDD 'unless the entity provides Personnel in Employment four or more public pay phones." Title II Litigation Concerning tornado warning signals, DOJ Court decisions on employment discrimina- stated in a policy letter that if tornado warningstion against emergency services personnel favor are provided by State and local governments, emergency service employers. DOJ has not in- then those systems are covered programs undertervened in these cases or provided much guid- title II of the ADA."71 DOJ stated that the corre-ance in this area.74 For example, in the case of spondent's suggestion of installing a flashingSerrano v. County of Arlington,75 the applicant light as a tornado warning is one possible way offor a firefighter position had a history of back effectively communicating warning signals. DOJinjuries and was limited in lifting heavy objects, noted, however, that "[Ole ADA does not dictate yet had no apparent limitations in his day-to-day use of any particular method of complying withwork. Although the limit in carrying objects may title II's effective communication requirement,have prevented him from performing an impor- as long as the method chosen ensures effectivetant part of the duties of a firefighter, the plain- communication with persons with disabilities."72 tiff argued that he was considered to be incapa- In another letter, DOJ addressed the issue ofble of performing any job requiring heavy la- shelter and mass care during and after a disaster.bor." However, according to the court: DOJ's letter to the Federal Emergency Manage- ment Agency (FEMA) noted that local Emergency The County of Arlington did not regard plaintiff as Management Agencies receiving financial assis- disabled within the meaning of the ADA merely because it considered him as unsuited for the particular tance through FEMA are subject to title II of the demands of a firefighter. Moreover, plaintiff is unable ADA as are private organizations working withto safely perform the essential functions of a fire- them, such as the American Red Cross. The letterfighter. Accordingly, the plaintiff cannot establish a states that "[t]he focus of Title II of the ADA and prima facie case under the ADA.77 its implementing regulation is to ensure that, to In Bridges v. City of Bossier, the plaintiff argued the extent that a State or local governmental en-that he was discriminated against because of his tity provides programs, services, and activities to 73 Merrily A. Friedlander, Acting Chief, Coordination and Review Section, CRD, DOJ, letter to Adell Betts, Director, Coordinator, Governor's Commission on the Handicapped, Office of Equal Rights, Federal Emergency Management State of Rhode Island, May 17, 1993, reprinted in 5 Nat'l Agency (DJ# 204-012-00058) (hereafter cited as Friedlander Disability Law Reporter q 222. letter). 69 See John R. Dunne, Assistant Attorney General, CRD, 74 One exception was a complaint filed with DOJ alleging DOJ, letter to Barbara A. Mikulski, U.S. Senate, Nov. 29, that the Metro Government of Nashville. and Davidson 1993; Stewart B. Oneglia, Chief, Coordination and Review County had denied an individual, who is deaf in one ear, a Section, CRD, DOJ, letter to James D. Goerke, Deputy Di- position as a paramedic based on a policy that categorically rector, Advisory Commission on State Emergency Commu- excluded individuals with certain medical conditions, re- nications, Austin, TX, Feb. 9, 1994 (DJ# 204-012-00035); gardless of their abilities to perform job functions. On July Stewart B. Oneglia, Chief, Coordination and Review Section, 9, 1997, the district court entered a consent order in the CRD, DOJ, letterto Robert J.Moldashel,President, case, United States v. Metro Government of Nashville and Lakeland Communications, Inc., June 18, 1992 (DJ# 182- Davidson County, No. 3-97-0671 (M.D. Tenn.). Under the 06-00049); John R. Dunne, Assistant Attorney General, consent order, Metro hired the individual as a paramedic, CRD, DOJ, letter to Carl Levin, U.S. Senate, Apr. 20, 1992 will pay him approximately $54,000 in backpay and compen- (DJ# 192-180-04656). satory damages, and establishes a hiring policy that will 79 Deval L. Patrick, Assistant Attorney General, CRD, DOJ, ensure that individuals are evaluated based on their abili- letter to Kay Bailey Hutchinson, U.S. Senate, Dec. 28, 1996. ties without applying categorical standards based on medi- See 10 NDLR 1 200. cal conditions. DOJ Comments, July 24, 1998, p. 6. 71 John L. Wodatch, Chief, DRS, CRD, DOJ, letter to corre- 75 986 F.Supp. 992 (E.D. Va. 1997). spondent, Sept. 17, 1996, reprinted in 8 NDLR i 394. 7° Id. at 993-97. 72 Ibid. 77 Id. at 1001.

BEST COPY AVAILABLE 85 disability, Factor IX deficiency (a form of hemo- not whether firefighters are physically fit, but how philia), when the city rejected his application forfitness can be most appropriately measured and how employment as a firefighter.78 The city statedthe city may distinguish those firefighters who are that, although it refused to hire the plaintiff be- probably capable of performing the job from those cause of his condition, it did not regard him as firefighters who are probably not capable. The city has not proceeded arbitrarily, but rather has carefully having a disability. The court upheld the district developed a standard based upon the available medi- court's decision in favor of the city, stating thatcal literature using the best test available for meas- the plaintiff did not show that he had a disability uring fitness, the stress test.... We conclude that under the ADA.79 In this case, DOJ filed an anti- Smith has not met his burden of presenting a triable cus brief arguing that the city had regarded the issue on the business necessity defense.83 plaintiff as unable to perform an entire class of jobs, therefore violating the ADA by assuming In another case, Gilday v. Mecosta County,84 that the plaintiff was substantially limited in hisan emergency medical technician, was allegedly ability to work.80 terminated for rude conduct. He presented evi- A third example is the case of Smith v. City ofdence that under his condition,noninsulin- Des Moines.81 The city implemented a new ruledependent diabetes mellitus, stress caused his that required firefighters holding the rank ofblood sugar to fluctuate widely, causing him to captain or below to pass a spirometry test ofbecome frustrated and irritable. The plaintiff lung capacity to determine if firefighters couldargued that a reasonable accommodation to his wearaself-containedbreathingapparatusdisability would have been to transfer him to a (SCBA). Smith, a firefighter for 33 years, passed station that was less busy than the one to which the test in 3 out of 4 years. The next year, hehe was assigned, where he would have been bet- narrowly passed the test and was referred to ater able to follow his treatment plan of oral specialist for further testing. Although he passed medication, monitoring his blood sugar levels, later spirometry tests, he scored low on theand following a strict diet and exercise regimen stress test. Thus, Smith was placed on sick leaveand thus avoid the behavior for which he was and referred to other physicians. Because heterminated.85 The district court held that the passed the spirometry tests, four physicians con-plaintiff was not disabled because his diabetes, cluded that he was capable of working as a fire-when properly treated, did not substantially fighter. However, the fire department requiredlimit his ability to work or any other major life Smith to remain on sick leave until April of thatactivity. year when he would be 55 years of age and The Sixth Circuit reversed this ruling, hold- would be eligible for retirement. After Smithing that, in accordance with EEOC's interpretive failed to qualify for disability retirement and did guidelines, "the determination of whether an not file for pension benefits, the city fired himindividual is substantially limited in a major life for failure to meet the physical fitness standardsactivity must be made . . .without regard to of the department. Smith brought suit claimingmitigating measures such as medicines or assis- that his termination violated the ADA and the tive or prosthetic devices. "86 The court then de- Age Discrimination in Employment Act.82 Thetermined that the plaintiff had presented suffi- court determined that: cient evidence to create material issues of fact as to whether his uncontrolled diabetes substan- fitness and the ability to perform while wearing a tially limited his ability to work and thus consti- SCBA are undoubtedly job-related and necessary re- tuted a disability. The court, therefore, reversed quirements for firefighters. The dispute in this case is

83Id. at 1472-73. 7892 F. 3d 329, 331 (5th Cir. 1996). 841997 U.S. App. LEXIS 33306 (6th Cir. Sept. 2, 1997). 73Id. at 332-36. 85Id. at *2*3. 80DOJ, CRD, DRS, Enforcing the ADA. A Status Report from the Department of Justice, October 1995-March 1996. 86Id. at *6*7, *15 (quoting 29 C.F.R., pt. 1630, app. A, § 1630.2(h)). The Court held that EEOC's interpretation was 8199 F.3d 1466 (8th Cir. 1996). consistent with the text of the statute, the purpose of the 82Id. at 1467-68. ADA, and the legislative history of the ADA. Id. at *9*14.

86 the district court's summary judgment for theviduals' and communities' requests for clarifica- employer.87 tion and information about the ADA regarding law enforcement personnel procedures and the Settlement Agreements treatment of individuals with disabilities by law In 1995, DOJ was involved in a formalenforcement officials. In its policy letters, DOJ agreement to resolve two complaints againsthas addressed competently court decisions and firefighters who were discharged for reasons re-has produced additional material in regard to lated to HIV. One complainant was dischargedthose judicial issues. from his position as a firefighter when officials DOJ has issued technical assistance materials learned he was HIV positive. The other com-to law enforcement and emergency service or- plainant was discharged because of his associa-ganizations about the applicability of the ADA. tion with the first complainant. In the settle-These documents have the potential to provide a ment agreement, Marshall County, Mississippi,great deal of information and understanding agreed to reinstate the firefighters and paid each about the ADA to a great many people. For exam- $1,000 in damages. The county also agreed tople, in The Americans with Disabilities Act Title II provide HIV/AIDS training to all firefighters, to Technical Assistance Manual, DOJ provides gen- issue a nondiscrimination policy, to ensure the eral information on the ADA and specific informa- two complainants were not harassed, and to tion on issues such as public employment, acces- adopt a grievance procedure.88 sibility, and effective communication. Also, on April 8, 1998, DOJ entered a settle- However, as the Federal agency designated to ment agreement with Prince George's County, address ADA violations by State and local gov- Maryland, to provide applicants with disabilitiesernment entities, DOJ has conducted surpris- an equal opportunity to volunteer as emergencyingly little litigation in this area to establish medical technicians. The agreement resolvedbinding legal precedent.80 In addition, certain complaints filed with DOJ charging that thetopics have not been sufficiently addressed by Prince George's County, Maryland Police andDOJ. One such issue is alcoholism among law Fire Department violated the ADA by refusing to enforcement personnel. Alcoholism is a disease certify two qualified applicants with hearing im- covered under the ADA. Perhaps policy guidance pairments. Under the terms of the agreement,by DOJ within the ambit of law enforcement and the county no longer will reject automaticallyemergency service departments would distin- volunteer fire fighter or volunteer rescue techni- guish alcoholism from current drug use, and bet- cian applicants solely on the basis of disability; ter inform hiring and personnel policies and con- will evaluate, on an individual basis, every ap-tribute to alleviation of discrimination against plicant's ability to perform the essential func-such employees. In addition, the issue of reason- tions of the position; will provide training to allable accommodation must be addressed. Public personnel who participate in making volunteerentities, even after the passage of the ADA, are application decisions and to medical personnelnot making much progress in adapting working hired to evaluate applicants; and will make an conditions to those who have disabilities and are offer of reevaluation of the complainants' appli- qualified to work. DOJ should develop and pub- cation for active membership.89 lish additional assistance for title II implementation which would promote better hiring policies Summary Overall, it appears that DOJ is adequately 90 According to DOJ, "DRS believes [litigation] is an essen- implementing and enforcing title II, subtitle A, tial tool for credible and efficient enforcement to prevent discriminationagainst persons withdisabilities." DOJ of the ADA. DOJ has responded well to indi- Comments, July 24, 1998, p. 7. However, DOJ is required, under the title II regulation and Executive Order 12988, to attempt to reach a voluntary resolution of complaints prior 87 Id. at *16*20. to commencing litigation. A decision to litigate is made only 88 DOJ, CRD, DRS, Enforcing the ADA. A Status Report where the DRS and individuals or entities in violation of the Update from the Department of Justice, January-March ADA cannot agree on appropriate remedies or interpretation 1995, p. 5. of the law. Ibid. See 28 C.F.R. § 35.174 (1997); Exec. Order 89 DOJ Comments, July 24, 1998, p. 6. No. 12983, 3 C.F.R. 158 (1997).

77 and better treatment of workers who acquire a The prison population in the United States is disability during employment. growing and aging. At the end of June 1996, Although DOJ has written a few amici curiaemore than 1 million persons were incarcerated briefs, it has not actively been involved in ad-in State prisons. In addition, almost 600,000 dressing many of these issues in the courts. Or-persons were imprisoned in local jails. The ganizations such as the National Association ofprison population has risen consistently over the Protection and Advocacy Systems have criticized past decade, and the total number of prisoners DOJ for not initiating enough litigation.91 Othersunder Federal, State, and local jurisdiction in- have noted that DOJ is more likely to settlecreased by 5.3 percent from 1995 to 1996.97 The cases than litigate cases.92 DOJ has stated thataverage age of prison inmates is rising. Thus, situations do not always develop into lawsuits, since older inmates are more likely than younger and resolution can be achieved in other ways,inmates to be disabled or become disabled and such as settlement agreements. The cases DOJrequire special accommodations, the number of is mostly likely to litigate are those with dis- prisoners with disabilities is likely increasing.98 puted facts or questions about areas of ADA law There are few overall statistics on the num- that are not well established." ber of individuals with disabilities in the Na- tion's prisons. DOJ recently reported that of the Prisons 131,632 inmates in the California prison system, Prisons are one of the areas in which DRS345 used wheelchairs due to a permanent dis- has been actively engaged in title II implemen-ability; 650 used canes, prostheses, or walkers; tation, compliance, and enforcement. DRS re-141 were hearing impaired despite use of a ceives a large volume of complaints from prison-hearing aid; and 218 had visual impairments ers," accounting for approximately 25 percent ofthat were not corrected to 20/200 with corrective all complaints received.95 Other information pro- lenses.99 A 1993 California Corrections Depart- vided to the Commission by DRS staff indicates ment study reported that 11 percent of male and that in 1997, DRS completed investigations of15 percent of female prison inmates suffered 261 complaints filed by disabled inmates. Also,from severe mental disorders.'" According to the as of January 1998, 695 of 1,240 open title II National Institute of Justice, between 6 and 13 complaints involved prisons.96 percentof theNation's inmate population (between 640,000 and 800,000 inmates) may have a mental disability.'°' 91 Curtis L. Decker, Executive Director; Gary Gross, Direc- Some prisons are not accessible to prisoners tor of Legal Services; and Paula Rubin, Staff Attorney; Na- and visitors with disabilities because of the age tional Association of Protection and Advocacy Systems, in- of the prisons themselves.'" Inmates with dis- terview in Washington, DC, Nov. 12, 1997, p. 4. See also Imparato interview, p. 7. tal illness being denied medication." Maes letter, attach- 92 Andrew Imparato, General Counsel and Director of Policy, ment, p. 8. National Council on Disability, interview in Washington, DC, Oct. 20, 1997, p. 7. 97 DOJ, Bureau of Justice Statistics, "Prison and Jail In- mates at Midyear 1996," Bureau of Justice Statistics Bulle- 93 Breen interview, p. 5. tin (January 1997), p. 1. 94 Staff, DRS, CRD, DOJ, interview in Washington, DC, 98 Ira P. Robbins, "George Bush's America Meets Dante's Nov. 6, 1997, p. 2 (hereafter cited as DRS Staff November Inferno: The Americans with Disabilities Act in Prison," 1997 interview), statement of John Wodatch, Chief. See also Yale Law and Policy Review, vol. 15 (1996), p. 56 (hereafter Renee Wohlenhaus, Deputy Section Chief, DRS, CRD, DOJ, cited as Robbins, The ADA in Prison). Robbins notes that interview in Washington, DC, Apr. 14, 1998, p. 3; and Nichol the rise in prisoner age corresponds with the spread of man- interview, p. 3. datory minimum sentencing policies. Ibid. 95 Robb Wolfson, Investigator, DRS, CRD, DOJ, interview in 99 See Brief for the United States As Intervenor and Amicus Washington, DC, Apr. 15, 1998, p. 2. Curiae at 42, 124 F.3d 1019 (9th Cir. 1997), citing ER 73-74. 96 John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick 100 See Robbins, "The ADA in Prison," p. 59, n. 47. D. Isler, Assistant Staff Director, OCRE, USCCR, June 3, 1998, DRS Response to Commission's Information Request, 101 See NIJ, "Mental Disabilities and Corrections," p. 1. p. 10. Other entities also receive ADA complaints from pris- 102 Allison J. Nichol, Deputy Chief, DSR, CRD, DOJ, inter- oners. For instance, the Michigan Protection and Advocacy view in Washington, DC, Apr. 14, 1998, p. 3 (hereafter cited Service has had "several calls regarding prisoners with men- as Nichol interview). 78

88 abilities are prone to having their personal versus special needs, and on prisoners' rights versus safety jeopardized by fellow inmates, architec- deference to prison authorities.'05 tural hazards, and inability to evacuate during an emergency. For these and other reasons, theyAt the end of 1995, 23,404 inmates (or 2.4 per- may be particularly vulnerable to discriminationcent) in State correctional facilities were HIV and oppression within the penal system.' °3 positive. Twenty-one percent of these individuals Although a wide variety of disabilities is rep- were confirmed AIDS cases. Between 1991 and resented among the Nation's prison population, 1995, about one in three of the Nation's inmate elderly prisoners, and those with cognitive defi-deaths were due to AIDS-related causes.108 cits, hearing impairments, and HIV present particular difficulties and challenges that requireApplicability of Title II accommodations.104 For example, deaf and hard The applicability of title II to prisons and pris- of hearing inmates have distinct problems, suchoners has generated considerable debate. DOJ as not hearing announcements or emergencyhas indicated consistently that title II's nondis- warnings. Despite the apparent "invisibility" ofcrimination protections extend to prisoners. The hearing deficits, prison guards notice deaf in-implementing regulations prepared by DOJ for mates' lack of response to commands, and fellowtitle II of the ADA "cover all services, programs, or inmates may take advantage of their vulner-activities provided or made available by public abilitytophysicalabuse.Inmateswithentities."107 The title II regulations also specifi- HIV/AIDS require special considerations. As one cally list correctional institutions among the pub- scholar has noted: lic entities under DOJ's jurisdiction.108 In its amicus briefs, policy letters, and technical assistance Accommodation of HIV-infected prisoners creates a materials, DOJ has clearly and consistently range of issues, including mainstreaming, protection stated that prisoners in correctional facilities are from physical violence and institutional staff preju- protected under title II of the ADA, since such dice, and providing for their extensive medical needs: facilities are public entities. For instance, DOJ's These needs regularly clash with the peculiar threat Title II Technical Assistance Manual includes ac- that HIV and AIDS present in a prison setting. Sex-cessibility standards for residential units in jails ual assault is commonplace among inmates, and with HIV infections already thriving, the potential forand other correctional institutions.109 transmission of the disease is considerable. The con- However, although the titleII regulations flict centers on the struggle between equal protection specifically state that correctional institutions are included under the jurisdiction of the De- partment of Justice,110 neither the statute nor 103 See Elaine Gardner, "The Legal Rights of Inmates with Physical Disabilities," St. Louis University Public Law Re- the title II regulations clearly state that prison-. view, vol. 14 (1994), p. 175 (hereafter cited as Gardner, "The ers are protected by the ADA. As a result, there Legal Rights of Inmates;" see also Robbins, The ADA in was disagreement among the courts as to Prison, p. 50. 1°4 See Robbins, "The ADA in Prison," pp. 62-63, citing Peter 105 Robbins, "The ADA in Prison," p. 61. Baker, "Assembly Ratifies Allen's Assault on Violent Crime: Work on Paying for Parole Plan Is Put on Hold Until Next 106 See Laura Maruschak, "HIV in Prisons and Jails," DOJ, Year," The Washington Post, Oct.1,1994, at Cl; NIJ, Bureau of Justice Statistics, Office of Justice Programs, "Mental Disabilities and Corrections," p. 2; Paula N. Rubin 1995," August 1997, p. 1. and Susan W. Mc Campbell, "The Americans With Disabili- 107 28 C.F.R. § 35.102(a) (1997). See Gardner, "The Legal ties Act and Criminal Justice: Providing Inmate Services," Rights of Inmates," p. 178 ("It is manifest that correctional DOJ, Office of Justice Programs, National Institute of Jus- facilities are among these entities governed by Title II of the tice, July 1994, p. 2 (hereafter cited as NIJ, "Providing In- ADA and its regulation.") (citing section-by-section analysis, mate Services"). The frequent invisibility of mental disabili- 28 C.F.R. pt. 35, app. A). DOJ recognized the ADA's applica- ties, however, distinguishes them from "visible physical bility to jails and prisons, and incorporated reference to disabilities and becomes an additional obstacle to successful correctional facilities when it drafted the title II regulations. legal challenges." Robbins, "The ADA in Prison," p. 58. Addi- See also Robbins, "The ADA in Prison," p. 85. tional challenges faced by deaf and hearing-impaired in- 108 28 C.F.R. § 35.190(b)(6) (1997). mates during incarceration are addressed in Bonnie P. Tucker, "Deaf Prison Inmates: Time to Be Heard," Loyola of 1°9 DOJ, TitleII Technical Assistance Manual,§ H- Los Angeles Law Review, vol. 22 (1988), p. 1, as cited in Rob- 6.3300(6). bins, "The ADA in Prison," p. 63. 110 See 28 C.F.R. § 35.190(b)(6) (1997). 79

89 whether prisons and jails are covered under titlevania Department of Corrections v.Yeskey.116 II and whether incarcerated individuals are partThe Pennsylvania Department of Corrections of the ADA's protected class. Some courts ruledhad denied inmate Yeskey, who was hyperten- that the ADA does apply to State and local cor-sive, the opportunity to participate in a motiva- rectional facilities and the prisoners incarcer-tional boot camp program that would have ated in them, and other courts held that it doesshortened the length of his sentence.117 The not. The split among the courts on this issue Middle District Court of Pennsylvania dismissed may be best observed among the Federal cir-Yeskey's 1994 complaint alleging a violation of cuits. For instance, in 1997 the Ninth Circuit his rights under the ADA and held that the ADA determined that Congress intended to includedid not apply to State prisons.118 However, in corrections administration, prisons and theirJuly 1997, the Third Circuit Court of Appeals programs, and inmates when developing the reversed the lower court's opinion and ruled that language of the ADA.111 The Third Circuit andthe language of the ADA and DOJ's title II im- Seventh Circuit also held that the ADA applies plementing regulations were "all encompassing" to State correctional facilities.112 In contrast, the and sufficiently broad to find that State prisons Tenth Circuit held that the ADA does not applyand their programs, services, and activities, in- to a prisoner's claim that he was denied prisoncluding a boot camp program, are covered by the employment opportunities because of his dis-statute.119 The Third Circuit also held that inability.113 Part of the controversy surroundingmates with disabilities were protected by the the relevance of the ADA to incarcerated indi-ADA.120 The Supreme Court unanimously af- viduals relates to differing views on the extent tofirmed the decision of the Third Circuit and held which "legal rights" should be afforded to con-that the plain language of title II extends to victed criminals.114 In addition, according to the prison inmates. Writing for the Court, Justice chief judge of the Seventh Circuit Court of Ap- Scalia stated: peals, even if persons within public jails or prisons who are not inmates (e.g., employees) are Petitioners contend that the phrase "benefits of the protected by the ADA, "it would not necessarily services, programs, or activities of a public entity" [in follow" that those correctional facilities must the ADA statute] creates an ambiguity, because state modify their programs to promote the accessi- prisons do not provide prisoners with "benefits" of "programs, services, or activities" as those terms are bility of prisoners with disabilities.115 ordinarily understood. We disagree. Modern prisons In June 1998, the U.S. Supreme Court endedprovide inmates with many recreational "activities," the debate on this issue in its ruling in Penn.syl- medical "services," and educational and vocational "programs,"allof whichatleasttheoretically In See Armstrong v. Wilson, 124 F. 3d 1019, 1023 (9th Cir. "benefit" the prisoners (and any of which disabled 1997)("weconcludethattheplainlanguageof the prisoners could be "excluded from participation in"). ADA...and our prior interpretations of that analysis support Indeed, the statute establishing the Motivational application of the [ADA] to State prisons"). Boot Camp at issue in this very case refers to it as a 112 Yeskey v. Pennsylvania Dep't of Corrections, 118 F.3d "program." The text of the ADA provides no basis for 168, 170-74 (3rd Cir. 1997); Crawford v. Indiana Dep't of Corrections, 115 F.3d 481, 485-87 (7th Cir. 1997). 116 Pennsylvania Dep't of Corrections v. Yeskey, 118 S.Ct. "3 White v. Colorado, 82 F.3d 364, 367 (10th Cir. 1996); see 1952 (1998), aft 118 F.3d at 168 (3rd Cir. 1997). also Torcasio v. Murray, 57 F.3d 1340, 1344-52 (4th Cir. 1995) (holding that ADA's applicability to prisons is not clearly es- 117 118 S.Ct. at 1954.. tablished, but strongly hinting that it is inapplicable). 118 118 F.3d at 169; "Court to Decide Whether Prisoners 1" Robbins, "The ADA in Prison," p. 85. See Gardner, "The Covered by Key Law," accessed at http://dynamic.webpoint. Legal Rights of Inmates," pp. 199-209 for discussion of con- com/news/oso/story/0,1024,50005449,00.html, p. 1; "Supreme stitutional and other Federal statutory rights and protec- Court to Decide Whether State Prisoners Covered Under tions granted to all individuals, including prison inmates ADA," Disability Compliance Bulletin, vol. 11, iss. 4 (Feb. with disabilities. 12, 1998), p. 7 (hereafter cited as "Supreme Court to Decide Whether State Prisoners Covered Under ADA"). 113 See Bryant v. Madigan, 84 F. 3d 246, 248 (7th Cir. 1996) (applicability of ADA to prison inmates questioned, but ex- 113 118 F.3d at 169-70 (citing 42 U.S.C. §12131(1)(B)); pressly left open; prisoner's complaint not covered by ADA "Supreme Court to Decide Whether State Prisoners Covered even if it were applicable); see also Robbins, "The ADA in Under ADA," p. 7. Prison," p. 85. 120 118 F.3d at 171-75. 80

so distinguishing these programs, services, and activi- teria are illegitimate. For example, a program ties from those provided by public entities that areeligibility requirement that excludes inmates on not prisons.12' psychotropic medications may violate the ADA. The Court held that the term "qualified indi-On the other hand, a requirement that such in- vidual with a disability" in the statute unambi-mates "be stable while on medication" is a le- guously applied to State prisoners.122 The Courtgitimate rule for program participation. Further, declined to address whether application of thea high security inmate cannot file a complaint of ADA to State prisons is a constitutional exercisediscrimination under title II of the ADA if he or of Congress' power under either the commerceshe is not offered a program provided to lower clause or section 5 of the 14th amendment be- security inmates.126 cause the petitioners failed to raise this argu- Prison inmates with disabilities, similar to ment before either the district court or the cir- others protected by title II of the ADA, are enti- cuit court.123 tled to information that effectively describes public entities' programs and activities. To com- Provisions Facilitating Access of ply with title H, State and local correctional fa- Prisoners with Disabilities to Programs cilities must provide disabled inmates with: DOJ has taken the position in its regulations, services in the most integrated setting appropri- litigation, and atnicus curiae briefs that it is ate to the disabled inmates' needs, auxiliary aids authorized to ensure that prisoners with dis-for hearing and visually impaired inmates,a abilities are not denied access to the services, qualified sign language interpreter and access to programs, and activities available to prisonersa TDD system for hard of hearing inmates, and without disabilities.124 The ADA and its imple- measures that make programs "usable" and menting regulations state explicitly that a public "readily accessible" by disabled inmates.127 entity's obligations are to "qualified" individuals Although inmates with mental disabilities with disabilities. To be "qualified" for a program,must not be excluded from programs and serv- an inmate must meet the "essential eligibilityices available to other inmates, correctional requirements."125 However, some eligibility cri- agencies are not required under the ADA to facilitate "program access" for inmates who could jeopardize the safety of others, unless the risks 121 118 S.Ct. at 1955 (citations omitted). can be eliminated by reasonable accommoda- 122 Id. In response to the recent Supreme Court ruling that tions. When an inmate in a public correctional the ADA covers prison inmates, Sens. Strom Thurmond and facility, attempting to participate in a particular Jesse Helms introduced a bill July 7 to exempt State and local prisons from ADA compliance. The State and Local activity, directly threatens the well-being of oth- Prison Relief Act (S. 2266) would amend title II of the ADA ers, he or she is considered not "qualified" for and section 504(b) of the Rehabilitation Act to exclude from such an activity.128 liability any operations relating to State and local prisons. The definition of auxiliary aids and services The disability community is extremely concerned about any attempt to amend the ADA. Stephen F. Gold, a Philadelphia for persons with visual and hearing deficits is attorney who has represented plaintiffs in several title II extensive. Some auxiliary aids and services for cases in Pennsylvania, noted that prisons currently make accommodations for inmates' religion, a policy that has not harmed the facilities' operations. He also noted that Strom Thurmond should be asked if prisons also should discrimi- 126 "Prisoners' Rights Under the ADA," accessedat http:// nate based on race or sex. See "Proposed Legislation Would wco.com/-aerick/ada.htm, p. 1. Exempt Prisons From ADA," BNA's Americans with Dis- 127 Gardner, "The Legal Rights of Inmates," pp. 179-80. abilities Act Manual, vol. 7, no. 14 (July 23, 1998), p. 84. DOJ's regulations require that each service, program, or 123 118 S.Ct. at 1956. activity of a public entity, when viewed in its entirety, be "readily accessible to and usable by individuals with disabili- 124 See Armstrong v. Wilson, 942 F. Supp. 1252, 1254, 1259 ties." 28 C.F.R. § 35.150(a) (1997). TDDs (telecommunication (N.D. Cal. 1996) (expansive language of the ADA, pursuant devices for the deaf) are relatively inexpensive devices that to congressional delegation of authority to establish that enable a hearing-impaired person to use a telephone by ADA applies to State correctional institutions). typing and receiving electronic messages over telephone 128 "Prisoners' Rights Under the ADA," accessed at http:// lines to another individual using a TDD. Gardner, "The Le- wco.com/-aerick/ada.htm, p.1. See NIJ, "Providing Inmate gal Rights of Inmates," p. 182. Services," p. 1. 128 See NIJ, "Providing Inmate Services," p. 2.

91 BEST COPY AVAILABLE hearing impaired individuals include hearing Architectural Barriers in Prisons aids, note takers, and transcription services. Many of the Nation's existing jails and pris- Auxiliary aids and services for visually impaired ons were built for a younger, abler population.135 individuals include mobility aids such as canes,Because of the need to accommodate persons readers, and Brailled materials.129 Correctionalwith disabilities in correctional and other public facilities covered by title H must provide these facilities, the Architectural and Transportation sensory devices (and/or others similar) unlessBarriers Compliance Board (Access Board) re- this obligation causes "fundamental alteration"vised its Americans with Disabilities Act Acces- of programs and services or creates undue bur-sibility Guidelines to include correctional facili- den.130 When determining the appropriate aux-ties and other entities covered by title II of the iliary provisions, public entities, including penalADA.136 In June 1994, the Access Board pub- institutions, must generally give preference tolished an interim rule adding provisions specifi- disabled individuals' requests.131 The "deference"cally applicable to State and local government to a disabled individual's requests is critical be- facilities to its ADA accessibility guidelines, and cause of the variety of types and severity levelsDOJ published a notice of proposed rulemaking of disabilities, the many types of available de-to adopt those provisions as standards. The vices, and the fact that certain auxiliary aids are guidelines became effective on April 13, 1998.137 effective for some individuals with a particularThey are intended to assist DOJ in establishing disability, yet not for others. accessibility standards for constructing new and The ADA titleIIregulationsdefinea modifying existing State and local facilities cov- "qualified" interpreter as one who is able toered by title II of the ADA. The guidelines ad- "interpret effectively, accurately, and impartiallydress the standards for building detention and both receptively and expressively, using anycorrectional facilities to accommodate disabled necessaryspecializedvocabulary."132Prisbnsinmates, staff, and visitors.135 Until DOJ adopts have frequently relied on other inmates to act asthe guidelines as standards, the guidelines "are interpreters and facilitate communication withadvisory only and are not to be construed as re- deaf inmates.133 One particular obstacle is thatquirements."139 the privacy available to nondisabled inmates The guidelines for detention and correctional during medical or counseling sessions, for in-facilities apply to jails, holding cells in police sta- stance, is relinquished when a deaf inmate needstions, prisons, juvenile detention centers, refor- a hearing peer to interpret. Courts haveheardmatories, and other institutions where occupants cases where interpreters have done "more harmare under some degree of restraint or restriction than good," by leaking confidential informationfor security reasons. In general, new and altered and threatening the hearing-impaired inmatescorrectional facilities operated by nonfederal whom they were supposed to assist.134 public entities must have at least 2 percent, but

129Gardner, "The Legal Rights of Inmates," pp. 180, 183. See for Civil Rts., Region IV) (inmate interpreter alleged to have 28 C.F.R. § 35.104 (1997) (definition of auxiliary aids and extorted cigarettes and food from a deaf inmate in exchange services). for accurate interpreting)). 13928 C.F.R. § 35.164 (1997). 135Robbins, "The ADA in Prison," p. 56. 131Gardner, "The Legal Rights of Inmates," pp. 184, 185. DOJ's regulation states: "In determining what type of aux- 138Americans with Disabilities Act Accessibility Guidelines iliary aid and service is necessary, a public entity shall give for Buildings and Facilities; State and Local Government primary consideration to the requests of the individual with Facilities, 63 Fed. Reg. 2000, 2,009-2,013 (1998) (to be codified at 36 C.F.R. part 1191, app. A §§ 12.1-12.6). In addition disabilities." 28 C.F.R. § 35.160(b)(2) (1997). to addressing correctional facilities,the 1998 guidelines 13228 C.F.R. § 35.104 (1997). propose requirements for transportation facilities and judi-

133See Gardner, "The Legal Rights of Inmates," p. 182. cial, legislative, and regulatory facilities. See 63 Fed. Reg. 2,000, 2,042-45 (1998). 134Gardner, "The Legal Rights of Inmates," p. 182 (citing Boner v.Lewis, 857 F.2d 559, 561-63 (9thCir.1988) 137Id. at 2,000-2,001. See also 59 Fed. Reg. 31,818: (1994) (information regarding nature of deaf inmate's crime leaked (Notice of Proposed Rulemaking). to general prison population by inmate interpreter); Com- 138Id. at 2,000, 2,045-2,048, 2,056-2,058 (1998). plaint in Du Quin v. Polk Correctional Institution, Complaint Nos. 04-91-4012, 04-91-4013 (U.S. Dep't. of Educ., Office 139Id. at 2,000, 2,001 (1998). 82

92 not less than one "accessible" cell, as well as atfor this population.143 This practice reflects the least one "housing or holding" cell that is fullylarger struggle of public entities to preserve equipped with audible emergency warning sys-their financial futures while complying with tems or permanently installed telephones. TheADA requirements. In a letter to the executive correctional facility's cells deemed "accessible"director of the Association of State Correctional must be distributed across different levels of se-Facilities, DOJ stated that the ADA generally curityand"holdingclassifications" (e.g., requires reasonable modifications to a covered male/female, adult/juvenile). Additional accessi-entity's policies, practices, or procedures when bility requirements pertain to entrances, secu-such modifications are essential to eliminate dis- rity systems, and visiting areas.140 crimination based on. disability. However, pro- Public entities need not remove physical bar-gram modifications are not required if they riers in all existing buildings, however, as longcause undue burden and/or "fundamentally al- as they make their programs accessible to per-ter" the nature of a public entity's service, pro- sons who are unable to use an inaccessible ex- gram, or activity.144 As long as the modifications isting facility. Also, public entities are not re- effectively eliminate discrimination, the correc- quired to take any action that would result in ations department has complied with its title II "fundamental alteration" in the nature of the obligations for program access. Overall, although service, program, or activity or in "undue finan-the ADA requires correctional institutions to cial or administrative burdens." This concept ofmake modifications to ensure that inmates are "fundamental alteration" and "undue burdens"not discriminated against due to their disabili- only applies under title II's requirements of pro-ties, the statute does not prevent the essential gram access in existing facilities and not underchanges from being made in a cost-effective and title II's requirements for new construction and efficient manner.145 alterations. Under title II's new construction and alterations requirement, public entities mustProfessional Licensing ensure that newly constructed buildings and fa-Statutory and Regulatory Framework cilities are free of architectural and communica- In deciding issues of character and fitness to tion barriers that restrict access or use by per-practice, professional licensing boards, including sons with disabilities. When a public entity un-State bar examiners, historically have asked ap- dertakes alterations to an existing building, itplicants about history of or treatment for mental also must ensure that the altered portions areillness and substance abuse, as well as other accessible.141 Some prison officials have argued that costs faced by State and local government entities, such as departments of corrections, to comply 143 Ibid., p. 108. with ADA's program access requirements can be 144 Deval Patrick, Assistant Attorney General, CRD, DOJ, prohibitive.142 Because of their concerns about letter to George M. Camp, Executive Director, Association of managing costs and dispersing disabled inmates State Correctional Facilities, Apr. 11, 1995 (hereafter cited efficiently throughout a State, some corrections as Patrick letter) reprinted in 7 Nat'l Disability L. Rep. 1 departments have created centralized facilities 425., pp. 2-3; 28 C.F.R. § 35.150(a)(3), 164 (1997). Correc- tions administrators may be concerned that security could be compromised when complying with ADA mandates to provide disabled inmates with auxiliary aids and services. 140 Id. at 2,046-2,048, 2,056-58 (1998). Gardner, "The Legal Rights of Inmates," pp. 195-96. 145 Patrick letter, p. 2. However, the defense of undue finan- 141 DOJ Comments, July 24, 1998, p.8. See 28 C.F.R. §§ 35.150, 35.151 (1997). cial burden can be difficult for corrections departments to prove, especially since many auxiliary aids and equipment 142 Robbins, "The ADA in Prison," p. 56. When Coleman v. can be inexpensive and used repeatedly by multiple inmates. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995) was pending in Administrative, rather than financial burdens, could be a the Eastern District Court of California, the head of the more appropriate argument made by corrections officials State corrections department's health careunit,Kyle when not providing particular programs or services to dis- McKinsey, estimated that it would cost $300 million annu- abled inmates. For instance, achieving "full integration" for ally to improve mental health services for mentally ill in- inmates with disabilities could create administrative bur- mates. Robbins, "The ADA in Prison," p. 60. dens. Gardner, "The Legal Rights of Inmates," p. 195. 83

1)3 questions of a personal nature.146 Before the DOJ noted in the section-by-section analysis ADA was enacted in 1990, a law student with a accompanying its notice of formal rulemaking for disability might have been able to challenge dis-itstitleIIregulation that some comments crimination by a law school under the Rehabili- "suggested that this part should include the sec- tation Act of 1973. However, it was not until the tion of the proposed title III regulation that im- passage of title II of the ADA, covering State and plemented section 309 of the Act, which requires local governments, that such a student wouldthat courses and examinations related to applica- have recourse under a Federal statute against a tions, licensing, certification, or credentialing be State licensing board.147 provided in an accessible place and manner or Title II's scope is very broad, covering allthatalternativeaccessible arrangements be State and localgovernments, ,regardlessof made."151 DOJ stated that it did not adopt this whether they receive Federal financial assis-suggestion because the other provisions in the tance. It is the first Federal civil rights statute toregulation, such as its general prohibition of discover State professional licensing boards. Pre- crimination, program access, and communications cisely because the statute is broad enough torequirements, all apply to courses and examina- reach what had heretofore been solely State pre- tions provided by public entities. DOJ also noted rogatives, such as licensing boards, the licensingthat another section of its regulation provides pro- issue has emerged as an important one in thetection against discrimination. This is the provi- development of title II law. Specifically, the is-sion requiring that a public entity administer pro- sue has arisen as to when State application re- grams, services, and activities "in the most inte- quirements and testing procedures violate title grated setting appropriate to the needs of the II's nondiscrimination mandate. qualified individuals with disabilities."152 DOJ's titleIIregulations were expressly Finally, the regulation implementing title II authorized by Congress (42 U.S.C. § 12134(a)),prohibits public entities from applying criteria they "should be accorded controlling weight un- that have the effect of differentiating among peo- less [they are] arbitrary, capricious or manifestly ple on the basis of a disability unless such criteria contrary tostatute."148 Several provisions inare necessary "for the provision of the service, DOJ's title II regulation apply to licensing and program, or activity offered."153 A qualified indi- certification by public entities. A public entityvidual with a disability cannot be denied licensure makes reasonable modifications in its policies,or certification if the person meets the essential procedures, and practices, "when the modifica- eligibility requirements for the task involved.154 tions are necessary to avoid discrimination on the This requirement also applies when a public en- basis of disability...."14s Public entities, thus, are tity contracts with a private entity to handle li- prohibited from administering "a licensing or cer- censing and certification responsibilitieS.155 tification program in a manner that subjects DOJ's title II regulation perhaps is most effec- qualified individuals with disabilities to discrimi- tive in protecting people with disabilities who nation on the basis of disability.. . ."15° seek to obtain State licenses when it provides for simple equality of access. The regulation states 146 Phyllis Coleman and Ronald A. Shellow, "Ask About that a public entity may not "limit a qualified in- Conduct, Not Mental Illness: A Proposal for Bar Examiners dividual with a disability in the enjoyment of any and Medical Boards to Comply With the ADA and Constitu- right, privilege, advantage, or opportunity enjoyed tion," Journal of Legislation, vol. 20 (1994), p. 147 (hereafter cited as Coleman and Shellow, "Ask About Conduct, Not Mental Illness)." 151 56 Fed. Reg. 35,694, 35,702 (1991). 147 Commerce Clearing House, "Americans with Disabilities Act of 1990Law and Explanation," Labor Law Reports, 152 Id. at 35,719. Issue No. 320, no. 395 (1990), p. 9. 152 28 C.F.R. § 35.130(b)(8) (1997). 148 Yeskey v. Pennsylvania Dep't of Corrections, 118 F.3d 154 DOJ's section-by section analysis notes that a "person is 168, 171 (3rd Cir. 1997) (quoting Babbit v. Sweet Home a 'qualified individual with a disability' with respect to li- Chapter of Communities for a Great Oregon, 115 S.Ct. 2407, censing or certification if he or she can meet the essential 2418 (1995)), afrd, 118 S.Ct. 1952 (1998). eligibility requirements for receiving the license or certifica- 148 28 C.F.R. § 35.130(6)(7) (1997). tion." 28 C.F.R. pt. 35, app. A § 35.130 at 477 (1997). 15° Id. § 35.130(b)(6) (1997). 155 Id. § 35.130(6)(3) (1997). 84

94 by others receiving the aid, benefit, or service."156 An essential eligibility requirement for obtaining a The broadness of this provision is entirely consis- license to practice medicine is the ability to practice tent with the ADA's overall theme of a broad pro- medicine safely and competently. State Agency X re- hibition against disability discrimination. quires applicants for licenses to practice medicine to disclose whether they have ever had any physical and mental disabilities. A much more rigorous investiga- Professional Licensing Issues tion is undertaken of applicants answering in the af- DOJ has played a significant role in guiding firmative than of others. This process violates title II the direction of the law with respect to State li- because of the additional burdens placed on individu- censing activities and title II. In addition to the als with disabilities, and because the disclosure re- regulatory and interpretive guidance DOJ has quirement is not limited to conditions that currently provided, it also has litigated this issue and filed impair one's ability to practice medicine.159 amicus curiae briefs on behalf of plaintiffs. In addition, DOJ has issued informal policy guidance in DOJ has stated some of the key elements in the form of policy letters and technical assistancean inquiry as to whether a particular licensing materials.157 This effort mainly has focused onmethod violates title II. Clearly, the plan in this ensuring that State and local licensing boardsexample would violate title II because it treats provide reasonable modifications to their proce- individuals with disabilitiesdifferently from dures, policies, or practices when necessary to those without disabilities by forcing people who avoid discriminationon the basis of disability.158 report that they have had a physical or mental illness to undergo more rigorous investigation. Application Requirements The second reason why this example would vio- One of the key areas relating to title II andlate title II is that its eligibility requirements are professional licensing procedures has been appli-not based on a current inquiry into the individ- cation requirements for membership in a givenual's ability to practice medicine. Rather, it asks profession. Every State, for example, requires whether the applicant has ever had a physical or applicants to its State bar to take a bar examina- mental disability. Put simply, DOJ has stated its tion before they can practice law in that State.main concern as ensuring that public entities do The same is true for medical students seeking to not "make unnecessary inquiries into the exis- practice medicine, for accountants, and for other tence of a disability."160 professionals. This last point is important because DOJ's In its Title II Technical Assistance Manual,analysis of title II violations in the area of pro- DOJ has provided the following example of afessional licensing procedures has focused exten- plan that would violate the statute: sively on the purpose behind certain questions in these procedures. In general, to address this concern, DOJ seeks to ensure that the inquiries 158 Id. § 35.130(a)(vii) (1997). into applicants' backgrounds are as narrowly 157 As it has with other emergent title II issues, DOJ has produced a significant amount of technical assistance material on tailored to their abilities in the field in which professional licensing and title II. For example, Testing Ac- they are being tested (e.g., law, medicine), as commodations for Persons with Disabilities Under the Ameri- focused on current information, and as nonintru- cans with Disabilities Act: The Impact on Licensure, Certifica- sive as possible. It should be noted that, in the tion and Credentialing is a brochure for government officials explaining the ADA requirements for agencies that offer or context of State professional licensing applica- require examinations for licenses, credentials, or certification tion inquiries, as in other ADA-related contexts, for educational, professional, or trade purposes, produced by the Association on Higher Education and Disability; and Test- ing Accommodations for Persons with Disabilities: A Guide to 159 DOJ, Title II Technical Assistance Manual, § 11-3.5300 Licensure, Certification, and Credentialing is a 26-page book- (1994 Supp); Bonnie P. Tucker and Bruce A. Goldstein, Le- let for agencies, institutions, and organizations that offer ex- gal Rights of Persons with Disabilities: An Analysis of Fed- aminations leading to licenses, credentials, or certification for eral Law (Horsham, PA: LRP Publications, 1992), p. 25:14 educational, professional, or trade purposes, produced by the (quoting § II-3.5300) (hereafter cited as Tucker and Gold- Association on Higher Education and Disability (formerly the stein, Legal Rights of Persons with Disabilities). Association on Handicapped Student Service Programs in 169 DOJ, Title II Technical Assistance Manual, § 11-3.5200; Postsecondary Education). Tucker and Goldstein, Legal Rights of Persons with Disabili- 158 28 C.F.R. § 35.130(6)(7) (1997). ties, p. 25:14 (quoting § 11-3.5300).

9 5 BEST COPY AVAILABLE the most controversial and most commonly seen to practice medicine so that others would be ex- issues have to do with mental illness and sub-posed to significant health and safety risks.164 stance abuse. DOJ also has issued informal guidance on Here, as elsewhere, DOJ has been clear inquestions about physical and mental health. reiterating these standards in other guidance.DOJ suggests that these types of questions be For example, in a 1996 policy letter written bytied more closely to safe practice of medicine. For DOJ in response to a letter of inquiry from aexample, asking if an individual's physical or congressman relating to people with chemicalmental health would affect his or her ability to dependency such as alcoholism, DOJ stated: practice medicine so that others could be ex- posed to significant health and safety risks is Whether a licensing board's questions regarding anmore closely tied to the safe practice of medicine applicant's or licensee's history of alcohol or drug than asking whether the individual is currently abuse is permissible under the ADA will depend on in good physical and mental health.'65 whether the questions are necessary to the objective DOJ has investigated several State profes- of practicing the profession at issue in a competent and ethical manner. Such questions must be focused sional licensing situations. For example, DOJ on actual, current impairments of candidates, abilities found that the Arizona bar application required or functions, and must be narrowly tailored to deter- applicants to answer questions relating to a his- mine the current fitness to practice the profession.'61 tory of mental, emotional, or nervous problems, as well as inquiries regarding treatment for ex- DOJ has issued guidance on medical ques-cessive use of alcohol and drugs. According to tions in other policy letters. For example, DOJDOJ's Letter of Findings to the Arizona bar ad- has stated that boards of medical examiners aremissions agency, these questions violated title permitted to ask questions that screen out, or11.166 Moreover, according to DOJ, the questions tend to screen out, individuals with disabilitieswould have violated title II even if the Arizona only if the criteria are "necessary" to ensure thatBar Association's Committee on Character and the board is licensing persons fit to practiceFitness had not used the responses to these medicine.162 DOJ has determined that somequestions to penalize applicants in any way.167 questions asked by boards of medical examinersArizona changed its bar application questions as appear to be too broad, in particular if a medical a result of DOJ's investigation.168 board inquires as to whether an applicant has In addition, DOJ has filed briefs as an amnicus ever been hospitalized or a patient in a mentalcuriae in at least three cases addressing the is- or other institution of confinement, or has ever sue of application requirements. For example, in been treated or received medication for a mental Clark v.Virginia Board of Bar Examiners,169 or behavioral condition. Use of such phrases asDOJ filed an ainicus brief in which it advanced "have you ever been" presents a problem inthe argument it has made consistently in its in- terms of time period. Time periods should be formal policy guidance, namely, that some State limited to the recent past, such as within the lastagencies' application questions for professional 5 years.163 Questions about hospitalization in alicensing examinations violate title II's nondis- mental or other institution of confinement, DOJcrimination requirements. In Clark, DOJ's aini- states, should be narrowly tailored to seek in-cus brief stated that the Virginia Board of Bar forniation that responds directly to legitimateExaminers application for admission asked the concerns about granting licenses to or renewing licenses of persons whose serious mental or be- 164 According to DOJ, the inquiry needs to focus on the pres- havioral impairments would affect their ability ent ability to meet essential eligibility requirements. 165 DOJ, Policy Letter No. 63, p. 4, (April 1993). 161 Deval L. Patrick, Assistant Attorney General, CRD, DOJ, 166 See Complaint No. 8-11 (DOJ Letter of Findings, Nov. 7, letter to Bennie Thompson, U.S. House of Representatives, 1994). Washington, DC, Aug. 1, 1996 reprinted in 9 Nat'l Disability 167 See ibid. L. Rep. ¶ 352.(emphasis added). 168 See Tucker and Goldstein, Legal Rights of Persons with 162 DOJ, Policy Letter No. 63, p. 2 (April 1993). Disabilities, p. 25:13, no. 60. 163 Ibid., p. 3 (April 1993). 169 880 F. Supp. 430 (E.D. Va. 1995). 86

96 question: "Have you within the past five (5)precisely the kind of impermissible stereotyping that years been treated or counseled for any mental, the ADA proscribes.' 75 emotional, or nervous disorders?"1" DOJ noted in its amicus brief in Clark that DOJ was successful in Jacobs. The court held applicants who answered in the affirmative tothat the practices of the board of medicalexam- this question were required to provide additionaliners violated title. II.178 In general, DOJ and the information concerning their diagnosis, course ofcourts typically have agreed on the key issues treatment, and prognosis, identify any treatingthat State professional licensing inquiries must physician or counselor, and authorize the releasebe about current information only and narrowly of their records.171 DOJ relied on the same two- tailored to the purpose behind the examination pronged argument it made in the example fromto avoid a title H violation. One example of a its Title II Technical Assistance Manual: first,court's agreeing with DOJ's position on this that applicants who answer affirmatively to thispoint is In re Petition and Questionnaire for Ad- question are treated differently from 'other ap-mission to the Rhode Island State Bar.177 In this plicants because they have to provide personalcase, the Rhode Island Bar admissions agency information about treatment for a disability;adopted a recommendation to eliminate barap- second, the reason for the question being on theplication questions about applicants' history of exam is not sufficiently narrowly tailored to .thesubstance abuse or mental-health-related treat- purpose of licensing fit practitioners of law.'"ment,only permitting questions concerning The court in Clark agreed with DOJ's and thewhether applicants currently are suffering from plaintiffs argument and enjoined the board froma disorder or using drugs and alcohol to the ex- asking future applicants this question.173 tent that it would interfere with their practice of In another amicus brief, Medical Society oflaw. This action is consistent with the ADA, New Jersey v. Jacobs,174.DOJ again returned toa whose civil rights protections do not extend to basic goal of the ADA in supporting its argumentcurrent illegal drug users, but do cover former or against the New Jersey State Board of Medical recovering drug users.178 Examiners: Other courts have followed suit on this issue.179 For example, in Ellen S. v. Florida Board While the ultimate goal of the New Jersey State of Bar Examiners, a Florida court held thata bar Board of Medical Examiners ("the Board") toensure admissions requirement that applicants disclose that only persons able to practice medicinecompe- whether they have ever sought treatment fora tently and safely be licensed is a laudable one, the mental, emotional, or nervous condition and means selected to achieve that goal is not. The licensure questions at issue in this case target authorize release of their medical records vio- for further investigation those individuals who have histories or diagnoses of disabilities. A core purpose of 175 Memorandum of the United States as Amicus Curiae at the ADA is the elimination of barriers caused by the 1-2, Medical Society of New Jersey v. Jacobs, No. 93- use of stereotypic assumptions "that are not truly 3670,1991 U.S. Dist. LEXIS 14294 (D.N.J. 1993). indicative of the individual ability of [persons with 176 The court held that extra investigations of qualified ap- disabilities] to participate in, and contribute to soci- plicants for a license to practice medicine or a renewal of ety. By categorizing persons with disabilities as po- this license who answer "yes" to questions concerningmen- tal health and alcohol or drug use history violates title II. tentially unfit and imposing additional burdens of 1991 U.S. Dist. LEXIS 14294 at *20*21. It denied plaintiffs investigation upon them, the Board is engaging in request for a preliminary injunction, however, stating that there was no record evidence that individuals whoanswer "yes" to such questions are subject to additional investigations with any frequency or rapidity. Id. at *30*31. 178 Recommended Findings of Fact and Conclusions of Law of the United States as Amicus Curiae at 1, Clark v. Virginia 177 683 A.2d 1333, 1336-38 (R.I. 1996). Board of Bar Examiners, 880 F. Supp. 430 (E.D. Va. 1995) 178 See 42 U.S.C. § 12114 (1994). (hereafter cited as U.S. Amicus Curiae in Clark). 178 Two commentators, Tucker and Goldstein, in their trea- 171 Id. at 1. tise on Federal disability law, Legal Rights of Persons with 172 Id. at 1-2. Disabilities: An Analysis of Federal Law, have provided a 173 880 F. Supp. 430, 431. list of cases that have found similarly to DOJ in the Arizona investigation. Tucker and Goldstein, Legal Rights of Persons 174 No. 93-3670, 1991 U.S. Dist. LEXIS 14294 (D.N.J. 1993). with Disabilities, pp. 25:12 to 25:13 & n.59. 87 lated title 11.188 In accord with DOJ's guidance The Applicants court agreed with DOJ and on this issue as enunciated in itsTechnical As- the majority of courts in that it, too, held that sistance Manual and policy guidance, courts and "broad-based" questions about mental health State licensing agencies appear to have recog- would be impermissible. The court stated that nized the importance of asking only questions"the Board has changed its inquiry and subse- related to current impairments that might nega-quent investigation form following the strict tively affect a professional career. statutory language to a narrowly focused in- Nonetheless, there have been a few dissent- quiry. The current question 11 is narrowly fo- ers. For example, in McCready v. Illinois,thecused on the specific serious mental illnesses court found that where questions about a historyexperts have advised the Board are likely to af- of mental health or Substance abuse were askedfect an applicant's present fitness."188 The court of third parties or references for the applicant,agreed that title II does require a narrow tai- the procedure did not violate title 11.181 In atloring of questions to ensure that stereotypes least one case, a Texas court found that ques-and myths about disabilities do not infect the tions about mental illness over the last 10 years process. However, it disagreed that the refor- on Texas' bar admission application did notvio- mulated questions were too "broad based," and it late title 11.182 The court noted that the questionssaw no violation of the statute based on differen- were limited to certain specific mentalillnesses, tial treatment of people with disabilities. On this including bipolar disorder and schizophrenia.183 point, the court essentially argued that the ques- The court found, however, as a matter of lawtions about mental illness were necessary to en- that there was no title II violation. The courtsure against potential direct threats and to en- observed: sure the "case-by-case, individualized" inquiry required under the ADA.188 Finally, the Appli- Is it necessary that the Board inquire whether an ap- cants court noted that "the affirmative answer plicant has been diagnosed or treated for bipolar disor- does not result in an immediate denial of a li- der, schizophrenia, paranoia, or other psychosis before cense to practice law," and therefore no right licensing the individual to assume these responsibili- protected under the ADA was abrogated.187 The ties? Before licensing the individual to write wills,court wrote: "The Board's process furthers the manage trusts set up for minors and disabled individuals, or draft contracts affecting parties' rights and fi- goal of the ADA to integrate those defined as nances? Before licensing the individual to represent a mentally disabled into society while ensuring parent in a proceeding to determine if the parent will that individuals licensed to practice law in Texas maintain or lose custody of a child? Before licensing the are capable of practicing law in a competent and individual to represent a individual charged with a ethical manner."188 crime who faces loss of liberty or even life? In each of The arguments of the Applicants court are these proceedings, the lawyer must be prepared to offer persuasive. However, DOJ's interpretation of the competent legal advice and representation despite the statute is prevailing in the courts. It seems that stress of understanding the responsibility the lawyer has assumed while balancing other clients' interests the crux of the difference between the two ar- and time demands. The rigorous application procedure, guments is how discrimination on the basis of including investigating whether an applicant has been disability is viewed in this context. The question diagnosed or treated for certain serious mental ill- is, is it discrimination to require more of an ap- nesses, is indeed necessary to ensure that sTexas' law- plicant who responds that he or she does have a yers are capable, morally and mentally, to providehistory of mental illness? Or, is discrimination these important service S.184

180 859 F. Supp 1489, 1493-94 (S.D. Fla. 1994). 185 Id. at *30*31. 181 No. 94 C 3582, 1995 U.S. Dist. LEXIS 791 at *19*21 188 Id. at *26*27. The court stated that the board strove to (E.D. III. 1995). "avoid improper generalization or stereotyping of mentally disabled individuals, as defined by the ADA and to apply ob- 182 Applicants v. Texas State Bd. of Bar Examiners, No. A 93 jective criteria on an individualized basis to determine if an CA 740 SS, 1994 U.S. Dist. LEXIS 21290 at *31*32 (W.D. applicant poses a threat to the public if licensed." Id. at *26. Tex. 1994). 187 Id. at *32. 183 Id. at *2. 1881d. at *32. 184 Id. at *29*30. 88

98 only present if that individual is denied a license addition, the ABA suggests that such questions to practice as a result of having answered yes? be "narrow both as to the time periods covered The basic ADA issue that DOJ has confronted and the scope of information sought." in its investigations and cases involving profes- As the court in Applicants v. Texas State sional licensing requirementsisthe myths,Board of Law Examiners observed, there is a fears, and stereotypes that have historically ac- balancing of interests between the nondiscrimi- companied certain disabilities and continue tonation requirements of title II and the interest affect the lives of people with these disabilities.States have in, ensuring that the public is safe DOJ stated its major concern with respect to this from unqualified practitioners, whether the field issue eloquently in its ainicus brief in the Clark is law, medicine, or some other. Many States case: traditionally have required applicants to provide information about their mental health history.193 At the heart of the Virginia Board of Bar Examiner's Striking the appropriate balance, as in other ar- case is a belief that inquiries into treatment, coun- eas of ADA law, has proven somewhat difficult. seling, or diagnosis of any mental illness will yield Many suggestions have been made for reforming information that will predict an attorney's inability to practice law. While the Board asserts that it has not the system. For example, some legal commenta- and will not deny a license solely on the basis of an tors have advocated a conduct-based (e.g., has affirmative response to [a question asking about pre- the applicant demonstrated professionalism, re- vious treatment for mental illness], it cannot be dis- sponsibility and integrity in prior activities?) as puted that [this question's] broad inquiry into theopposed to a status-based (e.g., is the applicant a applicant's mental health history reflects an assump- mental health patient?) analysis.194 tion that past diagnosis of or treatment for mental or emotional conditions renders the applicant more Testing Procedures likely than other candidates to be substantially im- Other issues relating to professional licensing paired in his or her ability to perform as a lawyer.189 and title II are more controversial. One of the An increasing number of lawsuits challenging most significant issues relates to the examina- the legality of mental health history inquiries is tion and the test-taking procedure itself. Chal- forcing State bar examiners and courts to con-lenges have emerged because of the need to sider the effect of title II and potential alterna- clarify the extent to which State licensing bodies tives to these types of questions that the statute are required by the ADA to modify testing pro- might require.190 To date, the only jurisdiction to cedures for applicants with disabilities who sit remove all questions relating to mental disabil- for licensing exams.195 The main dispute in the ity from its bar application is the District of Co- lumbia.191 by members of the ABA's Commission on Mental and Physi- The American Bar Association has recom- cal Disability, Section of Legal Education and Admissions to mended that State bar examiners tailor ques- the Bar, National Conference of Bar Examiners and the tions relating to mental health in a manner that Association of American Law Schools). 193Clark v. Virginia Bd. of Law Examiners, 880 F. Supp. will elicit only information relevant to an appli- 430, 438-41 (E.D. Va. 1995) (discussion of various States' cant's current qualifications to practice law.192 In requirements); see generally Catherine C. Cobb, "Comment, Challenging a State Bar's Mental Health Inquiries Under the ADA," Houston Law Review, vol. 32 (Winter 1966), p. 189 U.S.Amicus Curiae in Clark at 7-8. 1384 (hereafter cited as Cobb, "Challenging a State Bar's 190Carol J. Banta, "Note, The Impact of the Americans with Mental Health Inquiries Under the ADA"); Deborah L. Disabilities Act on State Bar Examiners' Inquiries Into the Rhode, "Moral Character as a Professional Credential," Yale Psychological History of Bar Applicants," Michigan Law Law Journal, vol. 94 (1985), pp. 575-83.

Review, vol. 94 (October 1995), pp. 168-70 (hereafter cited 194Coleman and Shellow, "Ask About Conduct, Not Mental as Banta, "The Impact of the ADA on State Bar Examiners' Illness";PhyllisColemanandRonald A. Shellow, Inquiries"). `Restricting Medical Licenses Based on Illness is Wrong 191"Bar Exams, Medical Boards Are Putting ADA to the Reporting Makes It Worse," Journal of Law and Health, vol. Test," Disability Compliance Bulletin (LRP), vol. 4, iss. 1 9 (1994/1995), p. 273; Cobb, "Challenging a State Bar's Men- (July 7, 1993), p. 7. tal Health Inquiries Under the ADA."

192Tucker and Goldstein, "Legal Rights of Persons with 195See, e.g., Argen v. New York State Bd. of Law Examiners, Disabilities," pp. 25:13, n.60 (discussing resolution drafted 860 F. Supp. 84 (W.D.N.Y. 1994) (applicant did not prove by 89 courts is how far a State licensing board must go DOJ has sought to resolve titleII issues in making reasonable accommodation or modifi- through its litigation and ainicus curiae work.'" cation to individuals with disabilities who are For example, DOJ filed an amicus brief in Ro- candidates for membership in a State licensedsenthal v. New York Board of Law Examiners, in profession. This controversy is borne out in thewhich it explained that although title II itself caselaw and in DOJ's letters of findings in title does not set forth specific requirements for test- II investigations, ainicus curiae briefs, and title ing practices, title III does. Title III's testing II litigation. standards, DOJ argued, "are useful as a guide For example, DOJ has found at least one for determining what constitutes discriminatory State agency, the New York Board of Bar Ex-conduct by a public agency in testing situations aminers, in violation of title II. DOJ found thatunder both Titles I and II."200 The court in this the board refused to provide qualified individu- case relied on title III and its implementing als with disabilities the accommodations neces-regulations even though it was a title II case, sary, based on the nature and severity of their because title III regulations discuss professional disabilities, to afford them an opportunity tolicensing and testing procedures and titleII demonstrate the legal knowledge and legal rea-regulations do not."' soning ability that the examination sought to Court response has been mixed in titleII measure.'" In a letter of findings detailing title cases involving professional licensing applicants II violations by the New York State Board ofseeking modifications to testing procedures to Law Examiners,107 DOJ stated that a formalaccommodate a disability. Some courts have written voluntary compliance agreement wasfound that the claimant did not have a disability necessary to provide appropriate remedies forthat would entitle him or her to accommodation. the victims of past discrimination and would en- On the other hand, where evidence has been suf- sure that the types of violations that had oc-ficient to show, say, a learning disability or vis- curred in the past would not happen again. DOJual impairment,courts have appeared respon- stipulated that standards and procedures forsive to the need for reasonable modification. For processing requests for accommodation would be example, in D'Amico v. New York State Board of included in the compliance agreement. The com- Law Examiners, a court ordered the New York pliance agreement would also include standards State Board of Bar Examiners to accommodate a and procedures for determining whether the ap-vision-impaired candidate by allowing the per- plicant was a qualified individual with a disabil- son to take the examination over 4 days rather ity and for making an individualized determina- than 2.202 Similarly, in Weintraub v. Board of tion of the accommodations necessary to provide Bar Examiners, a court held that a learning- such persons an opportunity to participate indisabled individual was entitled to accommoda- and benefit from the bar examination that is equal to the opportunity afforded to others.'" 199Daniel Searing, Supervisory Attorney, Office Administra- tion, DRS, CRD, DOJ, interview in Washington, DC, Apr. 13, 1998, p. 2. Mr. Searing noted DRS continues to write a lot of amicus briefs to bring more clarity to the statute. Ibid. preponderance of evidence that he suffered from learning 200Memorandum of Law by United States of America, Stat- disability entitling him to special accommodations for taking ing the Government's Views on Issues Pending Before the bar exam); Pazer v. New York Bd. of Law Examiners, 849 F. Court, at 4 n.2, Rosenthal v. New York Board of Law Ex- Supp. 284 (S.D.N.Y 1994) (same); In re Petition of Kara B. aminers, No. 92 Civ. 1100 (S.D.N.Y. July 29, 1992). The case Rubenstein, 637 A.2d 1131 (Del.1994) (applicant with was settled when the board agreed to grant extra time to learning disability ordered admitted after board of examin- take the examination to the applicant, who had severe dys- ers denied applicant additional time to take multistate bar lexia. Don DeBenedictus, "Bar Examiners Respond to the examination (MBE) portion with extra time and passed ADA," ABA Journal (November 1992), p. 20. MBE portion without extra time in previous administration). 201See 42 U.S.C. § 12189 (1994) (examinations and courses related to licensing); 28 C.F.R. 36.309 (1997) (same); 28 196See New York State Board of Law Examiners (DOJ Let- C.F.R. pt. 36, app. B § 36.309 (DOJ analysis of ADA provi- ter of Finding, Jan, 14, 1994). sion and implementing regulation on examinations related 19.1DOJ, Policy Letter No. 119 (January 1994). to licensing). 198DOJ,Policy Letter No. 119, p. 9 (January 1994). 202813 F. Supp 217, 291 (W.D.N.Y. 1993). 90

100 tions in the form of extended time to complete ment of Rehabilitation reported the following the exam.203 incident: However, in other cases, courts have held that no accommodation was required. For exam- We received a call on the ADA technical assistance ple, in several cases, courts have found evidence line from an individual who was bi-polar. He had of disability insufficient to allow any form of ac- been driving for his present employer for a number of years incident free. When he was diagnosed with a bi- commodation or modification to the normal polar disorder he was put on medication. He disclosed testing procedure.204 In general, courts are ap- to his employer who had no problems with this. How- plying the same analysis as under title I, that is, ever, when he went to renew his license Department a determination of whether the ADA claimant of Motor Vehicles would not renew it because of his can prove that he or she is a qualified individual condition (and/or the medication he was tak[ing] to with a disability. control his condition). Neither the employee nor the employer could understand DMV's rational[e]. And Other Licenses this is a policy on which they will not budge."6 DOJ also provides technical assistance and issues policies on such licenses as driving and Some departments of motor vehicles (DMVs) hunting. The phrase "essential eligibility re- historically have required answers to overly broad quirements" is particularly important in the con-questions about past mental illness or substance text of State licensing requirements. Althoughabuse, such as "Have you ever been a patient or many programs and activities of public entitiescommitted to an institution for mental disorders do not have significant qualification require- or drugs and/or alcohol?" An affirmative answer to ments, licensing programs often do require ap- such a question might result in a refusal to grant plicants to demonstrate specific skills, knowl-a license until the applicant submitted a letter of edge, and abilities. For example, an individualrelease. According to the Bazelon Center for Men- seeking a driver's license is not a "qualified indi- tal Health, which investigated a DMV in South vidual" unless he or she can operate a motor ve-Carolina, these questions often were crafted on hicle safely. A public entity may establish re-the mistaken assumption of a high correlation quirements, such as vision requirements, butbetween mental illness and driving accidents.207 denying a driver's license to all individuals whoThese types of questions, however, are prohibited have missing limbs, for example would be dis- by the title II regulation, providing that eligibility criminatory if the individual could operate a ve- criteria that screen out a class of people violate hicle safely without use of the missing limb. title II, unless the criteria can be shown necessary Unfortunately, a major barrier for people to providing services.208 with mental illnesses has been obtaining driver's DOJ also has issued policies on other li- licenses.205 For instance, the California Depart-censes. In response to a letter seeking guidance on the issuance of a special hunting permit that allows individuals with disabilitiestoshoot 203 Tucker and Goldstein, Legal Rights of Persons with Dis- game animals from a stationary vehicle, DOJ abilities, p. 25:15 (citing Weintraub v. Board of Bar Examin- ers, No. 0E-0087, slip op. (Mass. Sup. Jud. Ct. 1992)). stated that an ADA regulation permits a public 2" See Christian v. New York State Bd. of Law Examiners, entity to offer benefits to individuals with dis- 899 F.Supp. 1254 (S.D.N.Y. 1994) (denying a motion for pre- abilities, or a particular class of individuals with liminary injunction filed by a person with a learning disability disabilities, that it does not offer to individuals who sought to require the State bar examiners to provide accommodations necessary for her to take the bar exam); Pazer v. New York State Bd. of Law Examiners, 849 F. Supp. 284 (S.D.N.Y. 1994) (denying injunctive relief to a man seek- and People with Mental Illnesses: A Collaborative Approach ing accommodation to compensate for alleged "visual process- for Ensuring Equal Access to State Benefit and Service Pro- ing" disability because evidence was insufficient to show grams (Washington, DC: Judge David L. Bazelon Center for learning disability); Argen v. New York State Bd. of Law Ex- Mental Health Law, August 1995), pp. 32-33 (hereafter aminers, 860 F. Supp. 84 (W.D.N.Y. 1994) (denying testing cited as Bazelon Center, Opening Public Agency Doors). accommodation or modification for bar exam student who 2" Martin letter, attachment, p. 4. failed to prove he had a learning disability). 207 Bazelon Center, Opening Public Agency Doors, p. 33. Zoe Bazelon Center for Mental Health Law, Opening Public Agency Doors: Title II of the Americans with Disabilities Act 2" 28 C.F.R. § 35.130(6)(8) (1997). 91

101 without disabilities.209 DOJ stated that the pur- about how it would affect the operations of health pose of this provision is to allow State and local care providers. Most health care providers offer governments to provide special benefits, beyondinformation about their operations as a public those required by the ADA, that are limited to service to anyone who requests it. Commentators individuals with disabilities or a particular classrequested clarification on whether public health of individuals with disabilities, without incur- care providers would be required to provide ring additional obligations to persons withoutequally effective communication for individuals disabilities or to other classes of individuals withwith impaired hearing or speech.213 DOJ ad- disabilities.") dressed the communications concern in the provi- Overall, DOJ's requirements for specific insion in the title II regulation that requires a pub- quiries narrowly tailored to the purposes forlic entity to provide effective telecommunication which they are being asked, namely, a determi- systems for individuals with disabilities.214 nation as to whether the candidate is qualified, Commentators also raised concerns about the has given title II vitality in this area. This em-effect of the ADA with respect to health and phasis on the qualifications of a professional hassafety concerns of individuals with disabilities. forced many State agencies and institutions into In developing its title II regulations, DOJ had to discovering how littletheir collective myths, address questions relating to safety policies and fears, and stereotypes about people with disabili-the inclusion of individuals with disabilities who ties have to do with being qualified to practicepose a significant risk to the health or safety of law or medicine. In part because of DOJ's guid-others.215 DOJ has relied on a regulatory provi- ance in policy letters and arguments in ainicus sion developed for title III of the act when issues briefs, there has been a noticeable change in the of safety standards in public entities have way licensing applications and testing proce-arisen.216 This provision states that a public ac- dures are conducted. commodation is not required to permit an individual to participate in or benefit from the goods, Public Health Care services, facilities, privileges, and advantages of Health care providers, including all State and the public entity, if that individual poses a direct municipally managed hospitals, nursing homes,threat to the health or safety of others.217 DOJ health plans, health care programs, health in- cites School Board of Nassau County v. Arline, to surance, and all health care services, direct orsupport this position.218 In that case, the U.S. contractual, fall under the scope of title II of the Supreme Court recognized the need to balance ADA.211 The health care facilities and programsthe interests of people with disabilities against that are operated by State and local govern- legitimate concerns for public safety. In accord ments must not exclude qualified individualswith Arline, DOJ's analysis in its title II imple- with disabilities, on the basis of disability, from menting regulations states that, although a per- receiving their benefits, services, and programs,son with a disability is protected under the pro- nor subject such individuals to discrimination.212 visions of title II, a person who poses a threat to Many of the comments on DOJ's Februaryothers will not be "qualified" for inclusion if rea- 1991 proposed title II regulation raised concerns sonable accommodations or modifications to the

208 DOK, Policy Letter No. 55, p. 1 (February 1993) (citing 28 C.F.R. § 35.130(c) (1997)). 210 Ibid. 213 Id. pt . 35, app. A § 35.161(1997). 211 28 C.F.R. §§ 35.130(b)(1),(3) (1997) (exclusion of qualified 214 Id. § 35.161 (1997). individual with a disability from participation in or benefits 215 Id. pt. 35, app. A § 35.104, at 472-73 (1997). of services, prohibited, whether offered directly by a public entity, or through contractual, licensing, or other arrange- 216 See Id. § 36.208 (1997) (public accommodation not re- ments). quired to provide goods, services, accommodations to an individual who poses a direct threat to the health or safety 212 Id. § 35.130(a) (1997). The Department of Health and of others). Human Services (HHS), not DOJ, is the Federal agency responsible for investigating alleged title II violations by 217 42 U.S.C. § 12182(6)(3) (1994). public health care providers. Id. § 35.190(6)(3). 218 480 U.S. 273 (1987).

102 public entity's policies, practices, or proceduresand unjustifiable institutionalization of persons will not eliminate that risk.219 with disabilities also was identified specifically in congressional testimony by numerous sup- Integrated Setting porters of the ADA as one of the forms of segre- One of the most important issues relating togation and discrimination that the act was in- title II and health care has been the provision tended to eliminate.224 requiring that individuals with disabilities be The title II regulations recognize that in the placed in the most integrated setting possible to case of individuals with disabilities, "discrimi- ensure the full inclusion of individuals with dis- nation takes many different forms, including abilities within the community or within a Stateprograms that perpetuate the false assumption or local institution. The legislative history of the that people with disabilities must be segregated ADA confirms that Congress intended the act tofrom the rest of society in institutions."225 The end the unnecessary segregation of people withtitle II regulations address both institutionaliza- disabilities from the rest of the community.220tion and the need for integration of persons with Both the House and Senate reports emphasizeddisabilities.The regulationsdeclarethat a that one of the major purposes of the act was toState's provision of services in an unnecessarily end the isolation, exclusion, and segregation ofsegregated setting constitutes unlawful disabil- individuals with disabilities.221 In the ADA stat-ity-based discrimination. This provision, known ute,Congressaddressed thediscriminationas the "integration regulation," requires States against persons with disabilities in the "criticalto "administer services, programs, and activities area[ ]...[of] institutionalization.. .."222 Thus, in the most integrated setting appropriate to the in both the ADA's legislative history and itsneeds of qualified individuals withdisabili- findings and purposes as they are outlined in the ties."226 DOJ's analysis of its regulations ex- legislation, Congress recognized that the isola-plains that this regulatory provision requires all tion, segregation, and exclusion "represented bypublic entities to ensure a setting that enables unjustifiable institutionalization constitute dis-each person with a disability in their care to inability-baseddiscrimination."223Unnecessary teract with persons without disabilities to the "fullest extent possible."227 The preamble to the title II regulations states that "integration is 219 28 C.F.R. pt. 35, app. A § 35.104, at 472 (1997). However, the determination of a person who is a "direct threat" cannot fundamental to the purposes of the ADA. Provi- be based on generalizations or stereotypes. It must be based sion of segregated accommodations and services on individual assessment, current medical evidence, and the relegates persons with disabilities to second- best available objective information. The assessment also class status."228 Thus, DOJ's regulations reflect must include whether reasonable modifications will mitigate the risk or threat. Id. at 472-73. Congress' determination that services must be provided in an appropriate integrated setting. 229 See S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989); H.R. Rep. No. 485 (I), 101st Cong., 2d Sess. 24 (1990), reprinted in In the final regulations, DOJ recognized that 1990 U.S.C.C.A.N. 267, 268 ("The Americans with Disabili- promoting integration of individuals with dis- ties Act (ADA) will permit the United States to take a long- abilities into the mainstream of society is an im- delayed but very necessary step to welcome individuals with portant objective of the ADA and, in most in- disabilities fully into the mainstream of American society"). stances, separate programs or requirements for 221 See S. Rep. No. 116, 101st Cong., 1st Sess. 8 (1989); 135 Cong. Rec. 19,801 (1989). individuals with disabilities are not permitted. 222 42 U.S.C. §§ 12101(a)(3) (1994). 223 United States' Response to Defendants' Motion for Judg- N, 1995 U.S. Dist. LEXIS 13672 (M.D. Ala. April 18, 1995) ment on the Pleadings and Plaintiffs' Motion for Summary (granting motion in part, denying in part). Judgment on Plaintiffs' Claims Under the Americans with 224 Wyatt v. Hanan, U.S. Amicus Curiae at 13. Disabilities Act of 1990 at 5-6, Wyatt v. Hanan, No 3195N (M.D.A1a) (hereafter cited as Wyatt v. Hanan, U.S. Amicus 225 Id. at 11. Curiae). This is an ongoing class action lawsuit initially filed 226 28 C.F.R. § 35.130(d) (1997); Wyatt v. Hanan, U.S. Ami- in 1971 claiming that facilities operated by the Alabama De- cus Curiae at 8. partment of Mental Health and Mental Retardation violated 227 Id. pt. 35, app. A § 35.130, at 478 (1997). residents' rights under Federal law, including the ADA. The named defendant has changed when a new commissioner of 229 Id. pt. 35, app. A § 35.130, at 476 (1997); Wyatt v. Hanan, mental health takes office. Wyatt v. Poundstone III, No. 3195 U.S. Amicus Curiae at 8-9, 11. 93

BEST COPY AVAILABLE However, DOJ's analysis of the regulationsThe coverage for other children was limited by states that section 504 of the Rehabilitation Act age, whereas children with mental retardation of 1973 permits separate programs in limitedor physical disabilities required continued cover- circumstances and that Congress "clearly in-age.234 In its letter of findings, DOJ did not find tended" that the regulations issued under title IIthe California code in violation of title II of the adopt the standards of section 504.229 It also ad-ADA. DOJ explained that although title II pro- dresses the unlawful and segregated environ-hibits public entities from enforcing regulatory ment within State institutions, including healthrequirements that would discriminate against care facilities. individuals with disabilities, title II generally Many of the commentators asked for clarifi-permits State and local governments to provide cation on a public entity's obligations when itbenefits to a particular class of individuals with offers a separate program but an individual withparticular types of disabilities that they do not a disability chooses not to participate in the pro- provide to individuals with different disabili- gram. DOJ's position is that each situation hasties.235 Where a benefit is provided to a particu- to be assessed individually. It stated that it islar class of individuals with particular types of impossible to make a generalized statement as todisabilities (in this case, mental retardation and what level of modification would be required inphysical disabilities), discrimination isdeter- the integrated program. The first step is to ques-mined by comparing the treatment of all indi- tion whether the separate program is necessaryviduals with disabilities to the treatment pro- and what would be required to include individu-vided to similarly situated individuals without als with disabilities in the integrated program.230 disabilities.236 In 1993, DRS provided informal guidance to Policies on Title II and Health Care the Texas Department of Mental Health and Policy Letters on Health Care Issues Mental Retardation on application of the ADA to To date, DOJ has issued few policy lettersgroup homes provided for persons with mental addressing health care issues. Policy letters,retardation.237 The agency said that it contracts which express DRS' position on issues, usuallywith private citizens for placement of persons respond to inquiries on interpretation and im-with mental retardation into their homes and plementation of theregulations.231 Althoughasked if these homes are considered places of many of these inquiries fall under title III ratherpublic accommodation under title III of the ADA than title 11,232 DOJ states in its analysis of theand what were the State's and owners' obliga- title II regulations that some issues, such astionstoupgrade theaccessibilityof these safety and integration, are applicable or thehomes.238 DRS' response was that for this par- same as those requirements under title 111.233 ticular group home program, the State must en- In 1992, DOJ received a complaint that thesure that the contract activities were carried out California Health and Safety Code discriminatedin a manner consistent with the State's title II against individuals with mental impairments byresponsibilities.239 DRS explained that title II failing to require health insurance plans to continue coverage of dependent children with men- 234 DOJ, CRD, Coordination and Review Section, policy let- tal impairments other than mental retardation. ter of finding to Unknown Complainant, California, re: Healthcare, Feb. 3, 1992 (hereafter cited as CRD Unknown Healthcare letter of finding, California). 229 See 28 C.F.R. pt. 35, app. A § 35.130 at 478 (1997). See 235 Ibid.; 28 C.F.R. § 35.130(c) (1997). also Madden-Tyler v. Maricopa County 189 Ariz. 472, 943 236 CRD Unknown Healthcare letter of finding, California. P.2d 822, 829 (Ariz. Ct. App. 1997) (title II and all of its requirements are applicable under the standards set forth in 237 John L.Wodatch,Chief,Disability Rights Section section 504 of the Rehabilitation Act). (formerly the Public Access Section), CRD, DOJ, Policy letter to David L.Rollison, Texas Department of Mental 230 28 C.F.R. pt. 35, app. A § 35130, at 478-79 (1997). Health and Mental Retardation, San Antonio State School, 231 Wodatch interview, p. 3. San Antonio, TX, June 15, 1993 (hereafter cited as Rollison 232 Ibid. Healthcare Policy letter). 233 See 28 C.F.R. § 35.130, pt. 35, app. A § 35.130, 472, 476 238 Ibid. (1997). 239 Ibid.; 28 C.F.R. §§ 35.130(a)(ii), 130(b) (1997).

94 104 requires the State to ensure "program access,"vide health insurance.245 Although this particu- which means that the program, when viewed aslar inquiry fell under title III of the ADA (an in- a whole, must be accessible to qualified personssurance company is a private entity), a public with disabilities. Title II also requires the Stateentity that provides goods and services may not to administer its services, programs, and activi-discriminate on the basis of disability. DRS' re- ties. in the most integrated setting appropriate tosponse was that although the ADA does provide the needs of qualified individuals with disabili-some protection for individuals with disabilities ties.240 The homes themselves were not coveredin dealings with insurance companies, it does by title II, and under different circumstances,not prohibit the use of legitimate, sound actu- they would fall under title III. For example, thearial considerations in setting charges or refusal homes would be covered under title III if they to provide coverage.246 were social service center establishments that DRS' response to an inquiry on whether the provided meals, transportation, and counseling.ADA permits public or private entities to provide The homes would not be subject to the ADA ifmedical or dental treatment to persons with dis- they simply provided a "family-like" living ar-abilities (in this case, HIV) in segregated set- rangement, without any social services.24I tings was clear.247 First, DRS wrote that the DOJ's position on health and life insuranceADA prohibits discrimination against an indi- coverage and premiums for persons with dis-vidual on the basis of an individual's HIV or abilities is made clear in at least two policy let-AIDS condition. This is true whether the entity ters. DRS wrote that the ADA allows insuranceis public or private. Second, DRS wrote that companies to charge more for insurance, to deny"under both titles II and III, the ADA generally health insurance to an individual with a preex-prohibits the provision of separate or different isting condition for that condition, or to offerservices to individuals with disabilities, unless it policies that limit coverage for certain proce- is necessary to make the services as effective for dures or treatments, but only if the higherpeople with disabilities as they are to others."248 charges or limitations in coverage are based onThird, the response stated that both public and sound actuarial data and principles.242 private entities are required to provide their Responding to a 1993 inquiry on whetherservices in the most integrated settings appro- health and life insurance premiums could be af-priate to the needs of the individuals with dis- fected by a person's disability, DRS wrote thatabilities. DRS then elaborated on the exceptions while the ADA does provide some protection forfound in the "integration" requirement (under individuals with disabilities, the act does not titles II and 111).249 prohibit the use of legitimate actuarial consid- DRS explained that both titles II and III con- erations.243 DRS also recommended that thetain an exception to the general integration re- writer, a parent, ask the appropriate State offi-quirements when an individual with a disability cials about different or additional protections forposes a "direct threat" to the health or safety of the child with a disability.244 Another inquiryothers.259 According to DRS, a direct threat is asked if developmentally disabled children are protected by the ADA and if so, whether that 243 John L. Wodatch, Chief, Disability Rights Section, prevents discrimination by companies that pro- (formerly the Public Access Section), CRD, DOJ, Policy letter to Unknown Respondent, Sherman, TX, June 17, 1993, re: Healthcare (hereafter cited as Unknown Healthcare Pol- icy letter, Texas). 240 Rollison Healthcare Policy letter. 246 Ibid. 241 Ibid. 247 John L. Wodatch, Chief; Disability Rights Section (formerly the Public Access Section), CRD, DOJ, Policy let- 242 See John L. Wodatch, Chief, Disability Rights Section (formerly the Public Access Section), CRD, DOJ, Policy letter to A. Laurence Field & Associates, DE, Sept. 10, 1993, ter to Unknown Constituent, no location, Dec. 9, 1993, re: re: Healthcare (hereafter cited as Field & Associates Health- Healthcare, reprinted in 5 NDLR ¶ 85(hereafter cited as care Policy letter). DOJ Healthcare Policy letter to Unknown Constituent). 248 Ibid. 243 Ibid. 249 Ibid. 244 Ibid. 238 Ibid.; 28 C.F.R. pt. 35, app. A § 35.130, at 472-73 (1997).

95 105 defined as a "significant risk to the health oring to residents with mental disabilities.258 Ac- safety of others that cannot be eliminated or cording to the suit, the State operated five institu- satisfactorily mitigated by reasonable modifications for persons with developmental disabilities tions to the covered entity's procedures."251 Ac- and mental retardation and six institutions for cording to DOJ's analysis of its title II regula-people with mental illness. DOJ's position in the tion, an individual who poses a direct threat is case was that community-based programs repre- not considered a "qualified" individual for serv- sent integrated services both because they are ices or programs being offered.252 physically located in the mainstream of society The issue of segregation appears to surface forand because they provide opportunities for people persons who are HIV positive or have AIDS.with mental disabilities to interact with nondis- However, under both titles II and III, individuals abled persons.259 DOJ wrote in its ainicus curiae with HIV or AIDS may not be treated in a segre-brief that confinement of persons with mental gated setting unless it is necessary to providedisabilities in Alabama's institutions constituted those individuals with treatment as effective as issegregation because individuals living in such provided to individuals without HIV or AIDS.facilities are separated from the community and DOJ's position is that individuals with HIV orare isolated from where others live, work, and AIDS do not pose a direct threat to health profes- engage in life's activities.260 Many individuals who sionals or other medical patients as long as rea-were institutionalized in Alabama, professionals sonable sanitary methods can satisfactorily miti-had determined, were placed improperly and gate the risk of spreading the virus.253 should be served in appropriate community-based programs.261 Amicus Curiae Briefs in Health Care Related Cases The legal question in the case was whether DRS develops ADA policy through ainicus the defendants' unnecessary segregation of indi- briefs and litigation, and DOJ has filed numerous viduals with disabilities constituted discrimina- ainicus briefs in support of plaintiffs who alleged tion under title II of the ADA.262 DOJ's position discrimination in health care under title 11.254was that the case clearly fell under title II and However, DRS has been selective in the cases inthat the defendants misinterpreted the prohibi- volving health care. Most of the cases involving tion in title II against segregation.263 DOJ sided health and life insurance fall under title III, al- with the plaintiffs' motion for summary judg- though DRS did file a brief in a case challenging a ment on the grounds that unnecessary segrega- cap in medical benefits for AIDS for Illinois State tion of individuals with disabilities in institu- employees.255 Another title II issue in health care tions is a form of discrimination prohibited by is the use of interpreters in hospitals.256 the ADA and the corresponding regulations,264 To date, the focus of DOJ's title II health carethat ending the discriminatory segregation and briefs has been cases involving public entities andisolation through unnecessary institutionaliza- their interpretation and/or implementation oftion is a specific purpose of the ADA,265 that the DOJ's "integration regulation."257 For example, inADA regulations require States to provide serv- Wyatt v. Hanan, the plaintiffs sued the State ofices in the most integrated setting appropriate to Alabama because it operated a dual system forthe needs of people with disabilities,266 and that providing residential care, treatment, and train-

258 Wyatt v. Hanan, Brief for the United States as Amicus 251 Field & Associates Healthcare Policy letter; 28 C.F.R. pt. Curiae at 1, 871 F. Supp. 415 (N.D. Ala. 1994). 35, app. A § 35.130, at 472 (1997). 256 Id. at 2. 252 See 28 C.F.R. pt. 35, App. A § 35.130, at 472 (1997), Field & Associates Healthcare Policy letter. 260 id. 253 Field & Associates Healthcare Policy letter. 261 Id. 254 John Wodatch, Section Chief, DRS, CRD, DOJ, interview 262 Id. in Washington, DC, Apr. 16, 1998, p. 4; Breen interview, p. 1. 263 Id. at 1. 255 Wodatch interview, p. 3. 264 Id. at 3. 256 Ibid. 265 Id. at 5. 257 28 C.F.R. § 35.130 (d) (1997). 266 Id. at 8.

106 ADA's legislative history affirms that one of itsform of illegal discrimination against the dis- major purposes is to remove the unnecessaryabled."275 At the time of the Wyatt u. Hanan case, segregation.267 In the brief, DOJ also cited case-the Third Circuit in Helen L. u. Didario was the law that supports the "integration regulation,"only appellate court that had addressed the in- which affirms that States are obligated to pro-tegration regulation specifically. Relying on the vide services in the most integrated setting.268 integration regulation, the Third Circuit under- One of the cases that DOJ discusses in itsscored that the "ADA is intended to insure that amicus brief is Helen L. u. Didario.269 In this qualified individuals receive services in a man- case, six plaintiffs sued thePennsylvania De- ner consistent with basic human dignityrather partment of Public Welfare alleging that it vio-than a manner which shunts them aside, hides lated title II of the ADA by failing to provideand ignores them."276 The appellate court re- services to people with disabilities in the com-versed the district court and ordered it to enter munity through itsattendant care programsummary judgment in favor of the appellant.277 rather than in a nursing home.279 The district In three separate cases, all involving indi- court dismissed two individuals as plaintiffs be-viduals with disabilities inappropriately institu- cause they had been discharged fromthe nurs-tionalized in Maryland's public institutions, DOJ ing home and denied the plaintiffs' motion forfiled amicus curiae briefs in support of the plain- summary judgment. Plaintiff Idell S.filed a no-tiffs' motion for partial summary judgment un- tice of appeal. The remaining plaintiffs dis- der their title II claim.278 In all three cases, DOJ missed their claims because they .no were longer argued that Maryland had "unnecessarily segre- in nursing homes.271 DOJ filed an amicus curiae gated" the plaintiffs in institutions, and failed to brief in support of the appellant. It based itsprovide care in the most integrated setting ap- brief on the grounds that a public entity shallpropriate to their needscommunity-based pro- administer services, programs, and activities in grams.279 As stated in other related cases where the most integrated setting appropriate to theDOJ filed an amicus brief, the department ar- needs of qualified individuals with disabilities,272gued that the unnecessary segregation is a form and that the unnecessary segregation of indi-of discrimination prohibited by the ADA and the viduals with disabilities is a form of discrimina-title II regulations.289 DOJ also challenged the tion prohibited by the ADA and its implementing defendant's position that the cases did not fall re gulations .273 under title II. It stated in its brief that by failing The appellate court found that the Pennsyl-to serve qualified individuals with mental dis- vania Department of Public Welfare violated the abilities in the most appropriate integrated set- ADA when it required the appellant to remain in ting, the defendants violated title II of the ADA. the segregated setting of the nursing home.274In support of its position, DOJ cited the statute The Third Circuit specifically addressed the title II integration regulation of the ADA, and con- 275 Id. at 332-33. firmed that the "ADA and its attendant regula- 276 Id. at 335. tions clearly define unnecessary segregation as a 277 Id. at 339. 278 Memorandum of the United States In Support of Plain- tiffs' Motion for Partial Summary Judgment on ADA Claim 267 Id. at 12. And In Opposition to Defendant's Motion for Summary 268 /d. at 14-17. Judgment, Williams v. Wasserman, 937 F. Supp. 524 (D.Md. 289 46 F.3d 325 (3rd Cir.), cert. denied, 516 U.S. 813 (1995). 1996) (No. CCB-94-880) (hereafter cited as U.S. Amicus Curiae, Williams). Plaintiffs moved for summary judgment 279 Id. at 327-28. on behalf of a subclass of Williams plaintiffs.Plaintiffs did 271 Id. at 328. Two plaintiffs were not parties to the sum- not move for summary judgment on behalf of the individual mary judgment motions of the district court. Id. at 328 n.4. plaintiff in a related case, Hunt v. Ebberts (No. CCB-91 272 Brief for the United States as Amicus Curiae at 4, Helen 2564), nor on behalf of any of the plaintiffs with mental re- L v. Didario, 46 F.3d 325 (3rd Cir.), cert. denied, 516 U.S. tardation in another related case, Hattie J. v. Wasserman 813 (1995) (hereafter cited as U.S. Amicus Curiae, Helen L. (No. CCB-9401187). Defendants moved for summary judg- v. Didario). ment on the ADA claims in all three cases. Id. at 1 n.2. 273 U.S. Amicus Curiae at 8-16, Helen L. v. Didario. 279 Id. at 1-2. 274 Helen L v. Didario, 46 F.3d at 335-39. 288 Id. at 2; 28 C.F.R. § 35.130(d) (1997). 97

1 0 7 and the regulations, as well as the legislative[entity] offers."287 This includes the benefits of- history and Congressional intent of the act.281 fered by the HMOs contracted by State govern- The Department has issued legal positions in ments. other health care areas. For example, in 1997, the Department issued a Memorandum of Inter- Recent Legal Challenges and Research Studies venor on behalf of the plaintiffs in Anderson and In addition to DOJ's policy letters and amicus Garrison v. Pennsylvania Department of Public curiae briefs on health care issues, there have Welfare.282 In this case, plaintiffs filed suit al-been numerous challenges, in and out of court, leging that the State had failed to ensure thatagainst State health care services and plans. Also, the health maintenance organizations (HMOs)research studies have assessed the implementa- with which it had contracted provided medicaltion of State health care services and benefits for services for eligible citizens or offered facilitiesindividuals with disabilities. Some complaints that were accessible to individuals with mobilityfocus on deinstitutionalization while other cases impairments. In addition, the plaintiffs allegedhave involved persons with certain disabilities that the State failed to ensure that when HMOswho felt they were excluded from or denied cer- rendered such services, necessary medical in- tain services under State health plans or services. formation was provided to HMO patients withFor example, there have been suits against State visual impairments in appropriate alternativehealth care practices and services in such States formats.283 The defendant asserted that title IIas Pennsylvania,288Texas,289Georgia,299 and could not be enforced in this case. Iowa.291 The Department's memorandum addresses the broad constitutional jurisdictional coverage of title II of the ADA and "intentional discrimi- 287 Id. at 28,32. nation" under the equal protection clause.284 In 288 See Easley v. Snider, 36 F.3d 2975 (E.D. Pa. 1994). In this case, the plaintiffs contended that because they have its analysis, the Department said that Congress mental disabilities they should not be denied access to a intended to extend the ADA to every aspect of program for attendant care because of the disability. In the society and that the discrimination against per- program, the State allows mentally alert persons who have sons with disabilities was severe, and resulted physical disabilities to use surrogates in the management of their financial affairs but prohibits a similar arrangement from both intentional and nonintentional con- for persons who are not mentally alert. The U.S. district duct.285 In this case, the Department broadened court held that the State's exclusion of nonmentally alert the scope of protection under title II and ex- persons from the program did not violate title II of the ADA panded its discussion of the title beyond its because disabled persons who were not mentally alert were not simply a subgroup of the physically disabled. Rather, regulations.286 DOJ wrote that in title II of the their cases involved an additional handicap, severe degree of ADA, Congress attempted to redress discrimina- mental instability, which rendered participation in the pro- tion against persons with disabilities by man- gram ineffectual. Id. at 305-06. dating that "qualified individual[s] must be pro- 289 In Elizabeth B. v. Texas Dep't of Protective and Regula- vided meaningful access to the benefit that the tory Services Region #8 three plaintiffs alleged that the Texas Department of Protective and Regulatory Services, which has the responsibility for evaluating and placing indi- 281 U.S. Anticus Curiae at 5-12, Williams. viduals who are the managing conservatorship of the State into alternativeliving arrangements, failedto provide 282 Memorandum of Intervenor United States in Opposition "necessary and statutorily guaranteed alternative living to Defendant's Cross Motion for Partial Summary Judg- arrangements for children with disabilities in the conserva- ment, Anderson v. Pennsylvania Dep't of Public Welfare, torship which is the most integrated setting. The suit con- 1991 U.S. Dist. LEXIS 154924 (E.D. Pa. 1998) (No. 97 -39- tends that State officials "erroneously placed the plaintiff in 808) (hereafter cited as Anderson v. Pennsylvania, Memo- the home even though children with similar and signifi- randum of Intervenor, Anderson). cantly more profound disabilities are living in family set- 283 Memorandum of Intervenor at 2, Anderson. tings." The suit alleges that the State's department violated 284 In the case, the defendants alleged that the interpreta- title II of the ADA, specifically, 28 C.F.R. § 35.130(b)(1)(iv) tion of title II is too broad and is inappropriate or has no (providing different and unequal service to individuals with basis under the Constitution and the equal protection disabilities than to others). "Texas Accused of Unnecessary clause. See Memorandum of Intervenor at 8-9, Anderson. Institutionalizationof Children,"Disability Compliance Bulletin, vol. 4, iss. 16 (1994), p. 10. 288 Id. at 3-12. 288 See id. at 14,28-30,36. 290 See L.C. v. Olmstead, No. 1:95 CV -1210, 1997 U.S. Dist. LEXIS 3540 (N.D. Ga. 1997). In this case, the U.S. District 98

108 Research studies and reports also show thatnity treatment services.293 The researcher re- persons with certain disabilities are less likely to viewed legal cases and research studies and be placed in adequate community-based pro-found that since 1955, most seriously mentally grams because the programs do not meettheirill people have been less likely to find their needs.292 A 1992 law review article that focusedhomes in institutions and more likely to find on the treatment of the mentally ill in institu-their treatment alternatives in the commu- tionalizedversusdeinstitutionalizedsettingsnity."294 However, many mentally ill individuals found that many mentally ill individuals remain"are still confined to institutions either because institutionalized because of inadequate commu-no less restrictive options are available or because existing options are not utilized to integrate individuals with disabilities into community settings."295 Court for the Northern District of Georgia ruled that State In her legal analysis of numerous court cases, mental health officials violated title II of the ADA by con- the researcher noted that when a professional tinuing to institutionalize two mentally retarded individuals has recommended community-based treatment, in a State mental hospital instead of community-based treatment, and issued an injunction barring the State from but the State has not implemented the decision, violating the plaintiffs' rights under the ADA. The court also the courts have been receptive to a substantive ordered the State to release one of the plaintiffs to an ap- right to treatment claim under the due process propriate community-based program, and ordered that the clause of the 14th amendment.296 However, the other plaintiff receive appropriate support services to maintain her current community placement. Id. at *12*13. researcher maintained that the lack of commu- 291 See Conner v. Branstad, 839 F.Supp. 1346 (S.D. Iowa nity services often results in the "unnecessary 1993). In this class action suit, plaintiffs who were mentally confinement of [individuals] in highly restrictive and physically disabled challenged the State of Iowa's system settings for lack of another place to g0."297 She of providing services to the class in an institutional setting further explains that "[m]ental health profes- rather than in a community-based environment. The district court dismissed plaintiffs' title II claim, holding that neither sionals who continually recommend services that the explicit language of the ADA, its legislative history, 28 do not exist become frustrated and tend to C.F.R. § 35.130(d), nor analogous Rehabilitation Act precedent `conform their recommendations...to the con- required States to make "fundamental" or "substantial" modi- straints imposed by the State's inadequate serv- fications to their programs to create or expand alternative community-based services. Id. at 1357-58 & n.19. ice delivery system, rather than. . .exercise true professional judgment."'298 In other words, when 292 See Margaret A. Nosek and Carol A. Howland, "Personal Assistance Services: The Hub of the Policy Wheel for Commu- many of these professionals realize that what nity Integration of People with Severe Physical Disabilities," Policy Studies Journal, vol. 21, no. 4 (1993), pp. 789-800. This 293 Stacy E. Seicshnaydre, "Comment: Community Mental article discusses the difficulty in providing Personal Assis- Health Treatment for the Mentally Ill When Does Less Re- tance Services for persons with severe physical disabilities. It strictive Treatment Become a Right," Tulane Law Review, vol. states that the "success of persons with severe physical dis- 66 (1992) (hereafter cited as Seicshnaydre, "Community Men- abilitiesinliving independently inthe community, . tal Health Treatment for the Mentally Ill "). The author attrib- .depends, in part, on getting and maintaining adequate per- utes the deinstitutionalization of the mentally ill to several sonal assistance with such tasks." A personal assistant is factors including the discovery of overcrowded hospitals where someone who assists with activities of daily living to compen- neglect and brutality went "unchecked," and the emergence of sate for functional limitations in physical...capabilities." Ibid., "psychotropic" medication. To facilitate deinstitutionalization, pp. 789-90. According to the New York City Task Force on commitment standards were heightened so that individuals Medicaid Managed Care, "Often, a person with a disability must be proved to be a threat to themselves or others before requires a specialist or sub-specialist, a team including spe- they may be institutionalized. The article focuses on trends in cialists, or a specialty care center to provide for their health mental health care as they affect the community mental care. In many instances, the coordination of care from a spe- health treatment of mentally ill people confined in institu- cialist or a specialty care center is necessary in order for a tions. Id., at 1971-74. person with disability to have "an equal opportunity to achieve the same result from a Medicaid managed care program as 294 Id. at 1971. those persons without disabilities. Susan M. Dooha, Director 295 Id. at 1981. of Health Care Process, Public Policy Department, Gay Men's 296 Id. at 1983 (quoting Thomas S. v. Flaherty, 699 F.Supp. Health Crisis, letter to Frederick D. Is ler, Assistant Staff Di- 1178, 1195 (W.D.N.C.), Ord, 902 F.2d 250 (4th Cir. 1988), rector, OCRE, USCCR, Feb. 13, 1998, attachment, New York cert. denied, 498 U.S. 951 (1990). City Task Force on Medicaid Managed Care, p. 3 (hereafter 297 Id. (quoting Flaherty, 699 F. Supp. at 1196). cited as Dooha New York City Medicaid Managed Care letter and Attachment). 298 Id. at 1985, 1990. 99

BEST COPY AVAILABLE 109 the individual really needs does not exist in thewho have health insurance are "typicallyun- State, they will recommend a service that existsderinsured, with coverage packages that are ori- or is available, although they know it is inade-ented to acute care and that do not meet their quate. The researcher wrote that whether thespecific chronic and long-term care needs."305 ADA can affect these conditions is debatable. Specifically, the study reports that 3 millionper- Although she wrote that the act provides more sons with disabilities, or 15 percent of the dis- protection for individuals with disabilities thanability community, do not have any form of ever before,299 without "adequate enforcement,"health insurance, and "millions more do not the ADA will not "combat discrimination andhave access to adequate health insurance."306 segregation" of persons with mental disabilities The problem with State health insurance for adequately.399 individuals with disabilities surfaced in South An article published in 1996 also discussedCarolina. Individuals and an advocacygroup mental health treatment for persons with men-filed suit against the South Carolina Health In- tal disabilities.30 The author concluded thatsurance Pool (SCHIP), a nonprofit State entity "compared to physical health care, mental healththat was created to assist "uninsurable butnon- care has been subjected to stricter limits onindigent persons in securing reimbursements for utilization, higher co-payments, lower benefitcosts of their medical care. "307 In Doe v. South caps and more restricted types of offered serv-Carolina Health Insurance Pool, the plaintiffs ices."302 For children with serious mental healthalleged that SCHIP violated title II of the ADA needs, "denial of access to the appropriate serv-because it unlawfully discriminated againstper- ices can lead to unnecessary institutionalizationsons with AIDS or HIV infection by excluding or family breakup."303 them from coverage.308 The major plaintiff wasa Some of the challenges to health care servicesman diagnosed with HIV in 1985, and AIDS in have centered on the restrictive provisions pro- 1989. He was qualified for coverage by SCHIP vided in State health insurance plans that affectbecause he worked and was not eligible for persons with disabilities. A 1993 study by themedicaid or medicare. He was denied coverage National Council on Disability reported that aby private health insurance companies. All major problem in health care for many personshealth insurers authorized to issue or provide with disabilities is that "they have faced anon- health insurance in the State are members of the going struggle to obtain and retain the healthpoo1.309 The AIDS exclusion was added in 1989 care coverage they need to live independentlyby the State legislature.") The suit asked the and productively ."3" Persons with disabilitiesdistrict court for a "declaration that the exclusion of persons with HIV infection from SCHIP 299 Id. at 1985, 1990. violates the ADA and is therefore unenforceable, 300 Id. at 1985-86. The author discusses with approval cases and for an injunction directing SCHIP to admit like Jackson v. Fort, Stanton Hospital & Training School, Doe to the pool."3" 757 F.Supp. 1243, 1311 (D.N.M. 1990), in which the court stated that "lack of available alternatives does not excuse defendants from providing care in community settings for those individuals whose IDTs [interdisciplinary teams] have, in the exercise of their professional judgments, recom- (hereafter cited as NCD,Sharing the Risk and Ensuring mended community care." Seichnaydre, "Community Mental Independence); see also"Council's Health Care Study Urges Health Treatment for the Mentally Ill," pp. 1981-82. Pooling of Risk andCost," Disability Compliance Bulletin 301 Leonard S. Rubenstein, "Ending Discrimination Against (LRP), vol. 3, iss. 19 (Apr. 14, 1993), p. 5. Mental Health Treatment in Publicly Financed Health 305 NCD,Sharing the Risk and Ensuring Independence,p. 1. Care,"St. Louis Law Journal,vol. 40 (1996), pp. 1-40 306 Ibid., pp. 1-2. (hereafter cited as Rubenstein, "Ending Discrimination Against Mental Health Treatment'). 297 "South Carolina 'High Risk' Pool Sued,"Disability Com- pliance Bulletin(LRP), vol. 3, iss. 20 (Apr. 28, 1993), p. 3 302 Id. at 315 & n. 1. (hereafter cited as "High Risk Pool Sued"). 303Id.at 315 . 308 Ibid. 304 National Councilon Disability,Sharing the Risk and 309 Ibid. Ensuring Independence: A Disability Perspective on Access to 319 Ibid. Health Insurance and Health-Related Services,(Washington, DC: National Council on Disability, Mar. 4,1993), p.1. 3" Ibid., p. 4. 100

1 0 In 1995, the district court, in Givens v. Southture deleted the provision that excluded persons CarolinaHealthInsurancePool,approved infected with HIV from coverage.318 SCHIP and theexclusionof persons with Although a suit was not filed, disabled citi- HIV/AIDS from SCHIP coverage.312 The plaintiffzens and advocacy groups in Oregon challenged argued that the SCHIP policy violated title II,the State's health plan because they believed although it is a nonprofit corporation. The posi-certain provisions would exclude persons with tion was that the program was created by the disabilities from coverage. These citizens main- State legislature, receives tax credits, and thetained that under its original provisions, the governor appoints members of the board.313 The Oregon Health Plan violated titleII of the defendants argued that SCHIP is not a publicADA.319 Originally, the plan was viewed by its entity, and that the decision to exclude personssupporters as a way to extend coverage to unin- with HIV/AIDS from coverage was a "valid un- sured Oregonians without "significantly raising derwriting decision. . .consistent with state costs."329 Basically, the Oregon Health Plan lim- law."314 The court did not focus on SCHIP as aited medical treatments paid for by medicaid. public entity, but on insurers who can restrictThe controversial component of the plan was its coverage based on "underwriting risks that are "ranking system," whereby 688 medical condi- based on, or not inconsistent with, state law."315tions and their treatments were prioritized.321 The court determined that because South Caro- Under the plan, those ranked near the top would lina approves the "denial of coverage of HIV-be covered and those ranked near the bottom related illnesses, the ADA was not violated."316would not be covered. Advocates for persons with The plaintiff filed an appeal with the Fourthdisabilities challenged the prioritization as dis- Circuit and asked the court to examine the le-criminatory because rankings were based on gitimacy of the State law. He alleged that al- "quality of life."322 The more a medical procedure though the ADA does allow insurers to under-can improve the quality of life, the higher the write risks based on actuarial data, the HIV exclusion in South Carolina "was written into the law casually, with no debate and no actuarial disability equal access to insurance based on disability studies."317 In 1997, the South Carolina legisla- alone, if the disability does not pose increased risks). 319 "South Carolina Prepared to Implement the Health Insur- 312 "Court Allows State's High-Risk Insurance Pool to Ex- ance Portability and Accountability Act of 1996," The South clude Persons with HIV," Disability Compliance Bulletin Carolina Department of Insurance Newsletter, vol. 2, iss. 2 (LRP) , vol. 7, iss. 5 (Dec. 21, 1995), p. 10 (hereafter cited as (March-April 1997), p. 1. According to the newsletter, on Mar. "Court Allows State's High-Risk Insurance Pool to Exclude 31, 1997, the South Carolina State legislature passed Senate Persons with HIV"). The original plaintiff (DOE) died of Bill 287, which revises the South Carolina Health Insurance AIDS-related causes and Sam Givens came forward to re- Pool. Changes from the original legislation include increasing place the deceased in the lawsuit. According to the LRP the maximum benefit limit, capping the premiums in most article, Givens had an insurance policy, but when he devel- circumstances, and deleting the provision that excludes per- oped HIV and began to make claims for HIV-related ill- sons infected with HIV from coverage. nesses, his premiums escalated beyond his ability to pay. He 319 James V. Garvey, "Health Care Rationing and the applied to SCHIP but was denied coverage because he was Americans with Disabilities Act of 1990: What Protection HIV-positive. Ibid. Should the Disabled Be Afforded," Notre Dame Law Review, 313 Ibid. vol. 68 (1993),pp. 583-84 (hereafter cited as Garvey, "Health Care Rationing and the ADA"). This law review 314 Ibid. article is a lengthy discussion of the Oregon Health Plan, 315 Ibid. 42 U.S.C. § 12201(C)(2) (1994) provides that titles I including the history, intent, and overall ADA implications IV of the ADA shall not be construed to prohibit or restrict of the plan.Id.,pp.1-37; Disability Advocates Force "a person or organization covered by [the ADA] from estab- Changes in Oregon Health Plan," Disability Compliance lishing, sponsoring, observing, or administering the terms of Bulletin, vol. 3, iss. 19 (Apr. 14, 1993), p. 1. a bona fide benefit plan that are based on underwriting 320 "Disability Advocates Force Changes in Oregon Health risks, classifying risks, or administering such risks that are Plan," Disability Compliance Bulletin, vol. 3, Iss. 19 (Apr. based on or not inconsistent with State law." 14, 1993), p. 5 (hereafter cited as Disability Advocates Force 316 "Court Allows State's High-Risk Insurance Pool to Ex- Changes"). See also Garvey, "Health Care Rationing and the clude Persons with HIV," p. 10. ADA," pp. 6-8. 317 Ibid. See 29 C.F.R. pt. 35, app. A, § 1630.16(f), at 371 321 "Disability Advocates Force Changes," p. 1. (1997) (employer cannot deny qualified individual with a 322 Ibid., p. 5.

101 lit ranking.323 The advocates contended that suchand communicationsaccessibilitytohealth rankingswerediscriminatorybecausethe services.331 They also addressed ADA compliance "quality of life of persons with disabilities isgen- requirements.332 In essence, "the advocates iden- erally viewed as lower than for persons withouttified program issues that emerged throughout disabilities, thus, they would likely be deniedthe Medicaid managed care planningprocess, equal access to health care."324 The prioritizationand experts identified barriers and proposed process was based on the responses of 1,000constructive alternatives in health care services Oregonians who were asked to rank variousfor the disabled."333 health conditions, and not on objective medical These suggestions were incorporated in the evidence.325 New York City Task Force on Medicaid Managed The Bush administration rejected the plan,Care. Some of the issues that the workgroup agreeing with the advocates that the Oregonproposed in the ADA compliance guidelines that Health Plan violated the ADA. The State's sub- were presented to managed care organizations sequently revised plan was determined to havewho want to contract with New York City in- also violated the ADA. The Health Care Fi-cluded access to specialists and specialtycare nancing Administration, the Federal agency thatcenters, member services and health education, oversees medicaid, "ordered Oregon to re-rankcase management, home visits, and an ombuds- condition/treatments without relying on data man program.334 In October 1997, the city pub- collected with respect to returning patients toan lished its "Guidelines for MAMCO Compliance asymptomatic state."326 Under the Clinton ad-with ADA," whichoutlinesguidelinesfor ministration, "the Oregon Plan was approved"compliance, suggests methods for compliance, only after Oregon officials agreed to abide byand [provides requirements] for compliance plan alterations mandated by the Health Care Fi- submissions nancing Administration."327 By following the However, even when some disabled persons Health Care Financing Administration require- are able to obtain health insurance, they find dif- ments, the Oregon Health Plan would be inficulty in obtaining access to the health careserv- compliance with the ADA.328 ices. For example, in 1998, a paralyzed 32-year- New York City has started plans for a medi- old medicaid recipient from Takoma Park, Mary- caid-managed-care program.329 In 1997, Newland, complained to the Civil Rights Division at York City's Office of Medicaid Managed CareDOJ that Maryland's managed care healthpro- convened a task force to develop ADA compli-gram denies her accessibility to health services.336 ance guidelines. Advocacy groups that partici- She has been unable to find a doctor whose office pated in the planning process noted the prob-is wheelchair accessible and equipped with "an lems with the Oregon State plan and the diffi- exam table that can be lowered to 18 inches" to culty the State had in receiving approval frommeet her needs."337 Her attorneys' position is that the Health Care Financing Administration be- the complainant's "health maintenance organiza- cause it did not meet the requirements of thetion and the State of Maryland are ignoring her ADA.330 Advocates for people with disabilitiesrights under the Americans with Disabilities and medicaid beneficiaries submitted suggestions that included and went beyond physical 331 Ibid. 323 Ibid., p. 4. 332 Ibid. 324 Ibid. 333 Ibid., p. 2. 325 Ibid. 334 Ibid. 326 Ibid.; see also Garvey, "Health Care Rationing and the 335 Ibid. and attachment, pp. 1 -17. ADA," p. 1. 336 Avram Goldstein, "Is Managed Care Equipped for the 327 "Disability Advocates Force Changes," p. 4. Disabled," The Washington Post, Apr. 22, 1998, pp. Bi, B5. 328 Ibid. The Maryland Disability Law Center complained to the Civil Rights Division alleging that the complainant's HMO and 328 Dooha New York City Medicaid Managed Care letter,pp. the State health department "have effectively denied her 1-3 and Attachment, pp. 1-17. care for six months." Ibid., p. B5. 338 Dooha New York City Medicaid Managed Care letter,p. 1. 337 Ibid., pp. B1, B5.

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. 112 Act."338 Maryland medicaid's managed care or- insurers from treating persons with disabilities dif- ganizations have redirected their members from ferently without actuarial justification.344 specialty facilities (such as rehabilitation hospi- DOJ's title II regulations address some of the tals) to private physicians.339 The complainantconcerns raised about health carebenefits and alleges that her HMO has yet to find a physicianservices for persons with disabilities, but its in- (to date, she has tried four different doctors) whovolvement in health care litigation has been lim- can meet her needs. In one doctor'soffice, there doors were too ited. Although the department has issued policy were stairs. In another office, the letters on health care matters, these letters do not "narrow for her wheelchair."340 Disability advo-carry the same weight or meritthe same defer- cates say that this situation "shows the difficulties ence as the regulations andtechnical assistance facing individuals in medicaid programs in States materials.345 Information provided in response to that shift to managed care without careful plan- a letter does not set bindingprecedent in all sub- ning for people with disabilities and specialsequent cases and the courts have not deferred to needs."341 One advocacy group, the Nationalpolicy letters to the extent that they have to the Health Law Program, alleges that the Healthregulations or technical assistance manuals.346 Care Financing Administration has not responded Therefore, even when the department has taken a adequately to the problems affecting persons withposition or developed policy on health care issues, disabilities in the State medicaid managed care unless it is incorporated in the regulations or in- programs or in ensuring that these programs arecluded in a technical assistance manual, it is unin compliance with the ADA.342 likely that State and local governments will know Finally, a Pennsylvania Federal district court judge has granted class certification for a class what the position is. action suit brought by five psychiatric hospital residents alleging that a State department ofTechnology and State and Local public welfare violated title II by failing to pro-Government Web Sites TechnologyEmerging Issues vide them with services in the most integrated A substantial portion of the Nation's disabled setting appropriate.343 individuals uses computers and the Internet.347 In its report, the National Council on Dis- According to a 1996 report issued by the Ameri- ability stated: can Foundation for the Blind, 29 percentof blind access to health insurance and health-relatedservices and visually impaired individuals had a com- critically affects the ability of persons with disabilitiesputer in their homes. This compares to 25 to 40 to pursue employment and achieve independence.percent of the general population.348 Approxi- While the ADA did not resolve the problem of access mately 38 percent of blind and visually impaired to health care coverage for persons with disabilities, it individuals had used a computer during 1996; improves access by requiring. . .the same health benefits as those without disabilities and by prohibiting 344 NCD, Sharing the Risk and Ensuring Independence, p. 1. 345 Breen interview, p. 3. 346 Ibid. 338 Ibid., p. Bl. 347 National Council on Disability, Access to Multimedia 3" Ibid., p. B5. Technology, Washington, DC, Mar. 13, 1998, p. 52. 348 NCD, Access to Multimedia Technology, p. 53, citing 340 Ibid. American Foundation for the Blind, Comments of the 341 Ibid. The article noted that in April 1998, a Federal judge American Foundation for the Blind, Oct. 28, 1996, before the ruled that "Pennsylvania's managed care Medicaid program FCC WT Docket #96-198, in the Matter of Implementation violated the ADA and that the program must make sure of Section 255 of the Telecommunications Act of 1996, Ac- HMOs are free of architectural barriers." cess to Telecommunications Service, Telecommunications 342 Goldstein, "Is Managed Care Equipped for the Disabled," Equipment, and Customer Premises Equipment by Persons p. B5. with Disabilities; Wirthlin Worldwide, Wirthlin Report, vol. 343 Kathleen S. v. Dep't of Public Welfare, No. 97-6610, 1998 6, no. 7 (McLean, VA: Wirthin Worldwide, 1996); and Elec- U.S. Dist. LEXIS 2027 (E.D. Pa. 1998); see also "Class Certi- tronic Industries Association, U.S. Consumer Electronics fication Granted In Integrated Setting Case," Nat'l Disabil- Sales and Forecast 1992-1993 (Arlington, VA: Consumer ity L. Rep., Apr. 23, 1998, p. 21. Electronics Manufacturing Association, 1996). 103

113 BEST COPY AVAILABLE and 31 percent of these individuals had access tosame choices about their lives that their nondis- online services or the Internet.349 According toabled peers can take for granted."357 Thus, it is the National Council on Disability, these figurescritical that individuals with disabilities be able to were similar to those of the general popula-benefit from technology and have it become a tion.350 In addition, a 1996 report from an ongo- regular part of their lives.356 ing survey revealed that 8 percent of World Wide Ideally, products, processes, devices, systems, Web users had at least one disability; and ap-and services should be "universally designed" so proximately one-half of these individuals hadthat they can accommodate people with the wid- visual impairments.351 The National Council onest possible range of abilities, operating with Disability predicts that Internet use for indi-various constraints, and in numerous environ- viduals with visual impairments will continue toments and circumstances.359 Universal design increase, if the service is accessible.352 requires that products be equitable and flexible According to the Foundation for Technologyin use to accommodate a wide range of individ- Access, technology can enhance individuals' op-ual preferences as well as physical, perceptual, portunities to participate in a wide variety of ac-communication, and cognitive abilities.360 Cur- tivities.353 Technology has the potential to "levelrently, according to the Trace Research and De- the playing field"354 for persons with disabilities;velopment Center, "there are no universal de- enable them to interact with other individuals;signs or universally-designed products."361 That and reduce the personal mobility and communica-is, no program, feature, service, or material in tion barriers they confront due to their disabili-general is accessible to and usable by all indi- ties.355 According to former Sen. Bob Dole, forviduals; and there can be potential consequences people with disabilities, whether the disabilities to individuals who are "left out."362 As a result, are sensory, cognitive, motor, or communication,individuals with disabilities could confront vari- technology can enhance mobility and "provide theous access barriers.363 tools to speak, hear,see,write, learn, and The National Council on Disability states work."356 He added that technology fosters thethat the disability community has been publi- means for individuals with disabilities to "live ascizing the notion of "universal design" for more fully and independently as possible and make thethan a decade, and reports that buildings and transportation systems should be usable by persons with a wide range of disabilities.364 Barriers 349 NCD, Access to Multimedia Technology, p. 53. confronted by persons with disabilities include 350 Ibid. (a) signs, building directories, and other systems 351 Ibid., p. 52, citing Georgia Institute of Technology (1996), that were previously silent; (b) graphics in in- accessed at http://www.cc.gatech.edu/gvu/user_surveys/sur formation kiosks and other interactive sites; and vey-04-1996. 352 NCD, Access to Multimedia Technology, p. 53. 353 Alliance for Technology Access, Computer Resources for 357 Ibid. People With Disabilities (Alameda, CA: Hunter House Publi- 358 Alliance for Technology Access, Computer Resources for cations, 1994), p. ix (hereafter cited as ATA, Computer Re- People With Disabilities (Alameda, CA: Hunter House Publi- sources). cations, 1994), p. ix. 354 National Council on Disability, Access to the Information 359 Greg Vanderheiden, Trace Research and Development Superhighway and Emerging Technology by People With Center, "Universal Design: What It Is and What It Isn't," Disabilities (Washington, DC: National Council on Disabil- University of Wisconsin at Madison, May 1996,p. 1 ity, Sept. 30, 1996), p. xi (hereafter cited as NCD, Access to (hereafter cited as TRDC, "Universal Design"); and http:// the Information Superhighway); and National Council on www.trace.wisc.edu/publications/3.html. Disability, Achieving Independence: The Challenge for the 360 http://www.trace.wisc.edu/publications/3.html. 21st Century: A Decade of Progress on Disability 'Policy: Set- ting an Agenda for the Future (Washington, DC: National 361 TRDC, "Universal Design," p. 1. Council on Disability, July 26, 1996), p. 109 (hereafter cited 362 Greg Vanderheiden, "Key Issues in Assuring That Na- as NCD, Achieving Independence). tional Information Infrastructure in Classrooms is Accessi- 355 NCD, Access to the Information Superhighway, pp. ix, xi. ble," Trace Research and Development Center, February 28, 356 Robert Dole, "Fulfilling America's Promise: Technology 1997; and TRDC, "Universal Design." and the Disabled," U.S. Senate, Apr. 19, 1996, p. 2 (hereafter 363 TRDC, "Universal Design," p. 1. cited as Dole, "Fulfilling America's Promise"). 364 NCD, Achieving Independence, p. 110.

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114 (c) "sealed public systems," such as fare ma- In addition, personal isolation can be dimin- chines, automated teller machines (ATMs), andished as individuals "congregate" and share their other machines with touch screens.365 However, interests on line.371 Furthermore, students can despite these and other potential barriers con-apply for financial aid and access a tutor while fronted by individuals with disabilities, there are online,andenrollin"distancelearning various strategies, assistive devices and services, courses."372 Electronic information networks also and policy interventions/legislative initiativesenable individuals to (a) send an emergency that can foster and provide "complete and effi-alert to everyone in one's family simultaneously cient access" to information and services for in-and have it arrive moments later; (b) obtain tax dividuals with disabilities.366 forms and computational assistance from accountants who provide online help; (c) search job General Advantages of Technological postings confidently; (d) preview cars before vis- Devices and Services iting a dealer; (e) obtain a traffic report from a According to the National Council on Dis- monitored location; and (f) select a vacation spot, ability, individuals regularly and increasinglybook the flight, and reserve the hotel room by rely on technology to enhance functioning and clicking on a "mouse."373 Over time, "as the novel perform routine tasks.367 From eyeglasses tobecomes the ordinary," the provision and cost of telephones to remote controls for televisions, thesuch technology becomes "standard farein daily lives of individuals are shaped by techno-American business and culture."374 logical innovation. Thus, if technological innova- Online employee training programs can be tion proceeds in an accessible fashion, it can holdless costly than traditional professional devel- promise for individuals with disabilities and of-opment, obtained when and where needed, and fer them the same array of benefits as those at-can improve work performance and createfewer tained by their nondisabled peers.368 Throughinterruptions in the work environment.375 A telecommunications,individuals can conven-1997 report showed that the average time to iently obtain instant, up-to-date information intrain someone via computer technology was their homes from services (including those thatabout half that of traditional instructor-led are remotely located) that are otherwiseinacces- training.376 Advances in technology create the sible due to transportation, architectural, andoption to work from one's home in a rural area, communication barriers.369 Obtaining informa-correspond with (and even supervise) co-workers tion from electronic media can link users to vari- in a distant city via e-mail, and receive and send ous educational and medical services;and it vir- documents on fax machines.377 High-speed, "high tually ensures anonymity, which makes a dis- bandwidth communication channels" enable sci- ability invisible or irrelevant.370 entists to conduct experiments in a laboratory located across the globe; and collaborate efforts 365 NCD, Access to the Information Superhighway, pp. xii and publish findings with remotely-located col- and 36-41. leagues.378 Individuals with cerebral palsy, for 366 Ibid., pp. xii, 23-26; and National Council on Disability, instance, who are unable to operate delicate in- Access to Multimedia Technology by People with Sensory struments, and conduct chemical experiments in Disabilities (Washington, DC: National Council on Disabil- a laboratory using fragile glassware,could po- ity, Mar. 13, 1998), transmittal letter from Marca Bristo, Chairperson (hereafter cited as. NCD, Access to Multimedia). 371 NCD, Access to the Information Superhighway, p. 23. 367 NCD, Achieving Independence, p. 107. 372 Ibid., pp. 6 and 24. 368 Ibid.; NCD, Access to the Information Superhighway, p. 23. 373 Ibid., pp. 3-5 369ATA,Computer Resources,p.118;Don Barrett, Technology Information Specialist, Office of Communications 374 NCD, Achieving Independence, p. 107. and Information Services, Special Education and 375 NCD, Access to Multimedia, p. 15. RehabilitativeServices,U.S.Department of Education, telephone interview, Apr. 6, 1998, p. 2 (hereafter cited as 376 Ibid. Barrett interview); and NCD, Access to the Information 377 NCD, Achieving Independence, p. 108; and Robert Dole, Superhighway, pp. xi, 23, 24. "Fulfilling America's Promise: Technology and the Dis- abled," U.S. Senate, Apr. 19, 1996, p. 2. 378 NCD, Access to the Information Superhighway, p. xi; and Barrett interview, p. 2. 378 NCD, Access to the Information Superhighway, p. 6. 105

115 tentially be barred from achieving career goals (A) the evaluation of the needs of an individual with a as scientists. However, with simulations of the disability, including a functional evaluation of the instruments and glassware on a computer individual in the individual's customary environment; screen, these individuals can conduct experi- (B) purchasing, leasing, or otherwise providing for the ments using keyboard control or other interfaces acquisition of assistive technology devices by indi- to meet their needs.379 viduals with disabilities; (C) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing of Technology-related Assistance assistive technology devices; In 1988, Congress acknowledged the powerful (D) coordinating and using other therapies, interven- role that assistive technology and services can tions, or services with assistive technology devices, have for people with disabilities by passing the such as those associated with existing education and Technology-Related Assistance for Individuals rehabilitation plans and programs; with Disabilities Act of 1988, popularly referred (E) training or technical assistance for an individual to as the "Tech Act."385 The Tech Act was one of with disabilities, or, where appropriate,... the family the first pieces of Federal legislation to address members, guardians, advocates, or authorized representatives of such an individual; and the needs of all individuals with disabilities.381 (F) training or technical assistance for professionals With passage of the Tech Act and amendments(including individuals providing education and reha- to the act in 1994, Congress sought to address bilitation services), employers, or other individuals the inaccessibility for individuals with disabili- who provide services to, employ, or are otherwise sub- ties of existing and developing telecommunica- stantially involved in the major life functions of indi- tions and information technologies, as well as viduals with disabilities.383 the problem of inadequate information on the use of assistive technology resources.382 The Tech Act recognized the importance of The Tech Act also clarifies that assistive assistive technology in the lives of persons with technology services include: disabilities and was the premiere piece of legislation to define assistive technology devices and services.384 The Tech Act explicitly mentions that these provisions are "essential to enable persons with disabilities to (a) have greater control over their lives; (b) participate in, and contribute 378 Ibid., p. 24. more fully to activities in their home, school, 388 Pub. L. No. 100-407, 102 Stat. 1044 (codified as amended at 29 U.S.C. § 2201-2288 (Supp. 1996)) Congress amended work environments; (c) interact with their non- this statute in 1994. Technology-related Assistance for Indi- disabled peers; and (d) benefit from opportuni- viduals with Disabilities Amendments of 1994, Pub. L. No. ties taken for granted by others."385 103-218, 108 Stat. 50 (Supp. II 1996) (codified in 29 U.S.C. § As amended in 1994, the Tech Act requires 2201 note and in scattered sections of 29 U.S.C. See also States to perform "systems change" and advo- RehabilitationEngineeringSocietyof NorthAmerica (RESNA), The Tech Act Accomplishments to Date (Arlington, cacy activities intended to modify laws, policies, VA: Rehabilitation Engineering Society of North America, and practices to increase access of individuals September 1996), p. 3 (hereafter cited as RESNA, The Tech with disabilities to assistive technology.386 For Act Accomplishments). example, States must work to reach underrepre- 381 Behrmann, "AT for Students with Mild Disabilities," p. 72. sented and rural populations to improve their 382 29 U.S.C. § 2201(a)(7) (Supp. II 1996) states that: "Many individuals with disabilities cannot access existing telecommunications and information technologies and are at risk of not being able to access developing technologies. The failure 383 29 U.S.C. § 2202(3)(A)(F) (Supp. 1996). of Federal and State governments, hardware manufacturers, software designers, information systems managers, and 384 Barbara Crowl and Karen Franklin, "A New and Im- telecommunications service providers to account for the proved 'Tech Act'," accessed at http://www.resna.org/tap/atq specific needs of individuals with disabilities results in the /newtech.htm. exclusion of such individuals from the use of telecommunica- 385 29 U.S.C. § 2201(a)(3)(A)(D) (Supp. II 1996). tions and information technologies and results in unneces- 388 Id. § 2211 .(Supp. II 1996) (setting forth the systems sary costs associated with the retrofitting of devices and change and advocacy activities States receiving grants from product systems." See also Behrmann, "AT for Students with Secretary of Education are to undertake); RESNA, The Tech Mild Disabilities," p. 72. Act Accomplishments, p. 3.

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116 accessibility to assistive technology services.387 ing that equally effective communication takes To date, State projects have conducted aggres-place with respect to persons who have auditory, sive outreach to Hispanic, black, and Nativevisual, or speech impairments.394 The regula- American populations388 and have made effortstions and the analysis also list several potential to address concerns related to rural districtsaids and services.395 The analysis of the regula- through various approaches.389 The Tech Acttions mentions that the examples are intended program is administered by the U.S. Depart-to be an illustrative rather than an "all inclusive ment of Education, Office of Special Educationor exhaustive catalogue" of potentialdevices.396 and Rehabilitation Services through the Na-RESNA argues that the aids and services can tional Institute on Disability and Rehabilitation include "state of the art devices and emerging Re se arch.399 technology."397 However, RESNA acknowledges According to the National Council on Dis-that entities covered by title II of the ADA are ability, within the past decade, technological in-not mandated to use the most recent or most novations have fostered the potential for a level advanced technologies as long as the auxiliary of independence and productivity that was pre-aid or service that is selected affords effective viously unattainable by persons with disabili-communication.398 ties.391 For instance, rapid advances in techno- According to RESNA, the title II regulations logical capability have created the means for 54indicate that devices such as voice recognition million people with sight, auditory, manual, orsystems, automatic dialing telephones, and in- cognitiveimpairmentstoaccesscomputerfrared and other light control systems are means screens and keyboards.392 Because "digitalin- to promote access to and participation in services formation" is neither "visual, auditory, nor tac- and programs.399 However, RESNA is concerned tile," it can be translated (with appropriate pro-that DOJ does not consider these devices as gramming) into any of these forms to match anauxiliary aids or services that are essential for individual's sensory or manual needs.393 effective communication.499 According to DOJ, under the ADA regulations, "effective communi- Americans with Disabilities Act cation" is a term of art that applies only to com- In title II of the ADA, auxiliary aids andmunication between the covered entity and a services are defined to include a wide range ofperson who has a disability that affects speech, services and devices that are essential to ensur- hearing, or vision. The term "auxiliary aids and services" encompasses the range of devices necessary to ensure effective communicationbe- 387 RESNA, The Tech Act Accomplishments, p. 5. tween a covered entity and a person who has a 388 Ibid. Specific State outreach grantees endeavors include: hearing, speech, or vision impairment. Some disseminating information about assistive technology to Hispanic consumers; developing comprehensive plans that target disabled blacks of all ages to increase their access to 394 See 28 C.F.R, pt. 35, app. A, § 35.104, at 467. See also assistive technology; and utilizing a community liaison to Robert R. Williams, "ADA and A.T.: What the Final Regula- address the needs of Native Americans. The Tech Act allows States the flexibility to determine specific approaches to tions Say (Title II)," p.1, http/www/resna.org/tap/atq/ada accomplish these endeavors. Ibid. at2. htm. 395 See 28 C.F.R. § 35.104 (1997); 28 C.F.R., pt.. 35, app. A,§ 389 RESNA, The Tech Act Accomplishments, p. 5. Services to 35.104, at 467. See also Robert R. Williams, "ADA and A.T.: improve accessibility to technological services for disabled What the Final Regulations Say (Title II)," p. 1, http/www/ individuals in rural localities include use of mobile vans and establishment of numerous regional centers. The Tech Act resna.org/tap/atq/adaat2.htm. allows States the flexibility to determine specific approaches 396 28 C.F.R., pt. 35, app. A, § 35.104, at 467. See also Robert to accomplish these endeavors. Ibid. R. Williams, "ADA and A.T.: What the Final Regulations 399 Barbara Crowl and Karen Franklin, "A New and Im- Say (Title II)," p. 1, http/www/resna.org/tap/atq/adaat2.htm. proved 'Tech Act,"' accessed at http://www.resna.org/tap/atq 397 Robert R. Williams, "ADA and A.T.: What the Final /newtech.htm. Regulations Say (Title II)," p.1, accessed at http://www/ resna.org/tap/atq/adaat2. htm. 391 NCD, Achieving Independence, p. 107. 392 NCD, Access to Multimedia Technology, Letter of Trans- 398 Ibid. mittal. 399 Ibid. 393 Ibid. 4°9 Ibid. 107

BEST COPY AVAILABLE uses of advanced technology fit within this defi-with disabilities.406 However, it is increasingly nition, but many do not. The fact that such tech- becoming effective in accomplishing this objec- nology does notfitwithin the conceptof tive as well as eliminating stereotypes about "effective communication" does notmean that it persons with disabilities.407 is not required by the ADA. Using commercially available technology to enable aperson with a Financial Barriers Associated with disability to do a job or participate ina program Assistive Technology may be required as a "reasonable accommoda- Cost can be a major barrier for persons with tion" or a "reasonable modification," depending disabilities to obtain access to assistive technol- on the context, to provide equal opportunity toogy. According to a disability advocacy group, people with disabilities. In addition, to theex- expenditures for adapted computers, communi- tent that such devices are fixed or built into the cation devices, switches, and other technological structure of a building, they may be included inaids that enable individuals with disabilities to the ADA Standards for Accessible Design, whichparticipate in society can be substantia1.408 For governs the new construction of (or alterationsinstance, environmental control units can costas to) buildings and facilities subject to the ADA.401 much as $6,500.400 Similarly, TTYs couldrange An architect in DOJ's Disability Rights Sec- in price from $200 to $6,000.410 In 1996, former tion stated that as new technologyemerges, Kansas Sen. Robert Dole expressed concern that ADA standards should be updated and im- "thousands of the Nation's disabled individuals" proved, much as building codesare changed tocannot afford assistive technologies, some of incorporate advances in the industry.402 Stan-which costs thousands of dollars.411 Inresponse, dards and guidelines should be ona cyclical re- Senator Dole and Senator Conrad sponsoreda view and modification process. Standards shouldprovision in the Balanced Budget Act to allow not be changed in terms of how stringent theyMedicare beneficiaries to use their own funds to are because they were not designed to accommo- supplement medicare's payments for standard date all persons with disabilities.403 Accessibilitytechnologies, so that they can afford themore and cost should be balanced.404 sophisticated devices.412 Similarly, the Kansas With the support of assistive technology, in-legislature also recognized that financial barri- dividuals with disabilities have learned tocom- ers could preclude access to assistive technology municate more effectively, develop theirorgan- by persons with disabilities; and they thereby izational skills, improve their ability toprocessauthorized an annual $100,000 appropriation to information, and control their environments.405help pay for technology.413 Limited funding is Assistive technology alone cannot eliminate the also available through various Federalpro- burdens and challenges faced by individuals grams.414

401 DOJ Comments, July 24, 1998, pp. 8-9. 402 Ellen Harland, Architect, DRS, CRD, DOJ, interview in 4°8 Robert R. Williams, "Assistive Technology and People Washington, DC, Apr. 14, 1998, p. 4 (hereafter citedas with Disabilities: Separating Fact From Fiction,"p.1, ac- Harland interview). cessed at http://www.resna.org/tap/atq/sepfact.htm. 403 Ibid. 407 Ibid.; and Robert R. Williams, "Assistive Technology: Making It Work For People on the Job," p. 1, accessed at 404 Ibid. The ADA Standards for Accessible Design imple- http://www.resna.org/tap/atq/makingit.htm. ment the ADA requirements that buildings and facilities be designed and constructed to be readily accessible to people 4°8 Council for Exceptional Children, CEC Today, vol. 3,no 2 with disabilities. The ADA standards apply only to elements (August 1996), p. 1. that are a fixed part of a building or facility. The ADA stan- 409 ATA, Computer Resources, p. 238. dards may require the use of certain building elements that 410 Ibid., p.244. utilize technological advances, but they do notgovern the development of new technology or the use of technology in 411 Dole, "Fulfilling America's Promise," p. 2. any context other than building design. DOJ Comments, 412 Ibid. July 24, 1998, p. 9. 413 Ibid. 403 Judith Fein, "A History of Legislative Support for Assis- 414 Mary Male, Technology for Inclusion: Meetingthe Special tive Technology," Journal of Special Education Technology, Needs of All Students, 3rd ed. (Boston: Allyn and Bacon, 1997), vol. 13 (Spring 1996), no. 1, p. 1. p. 155 (hereafter cited as Male, Technology for Inclusion). 108

118 Examples of Federal Initiatives Additional funds have been appropriated to sup- U.S. Department of Education port the CAP program through 1999. The pro- The U.S. Department of Education (DOEd) gram is administered by DOD's Defense Medical considers "universal accessibility" to information Systems Support Center; and the major provi- to be a priority for the agency's customers (as sions are: well as employees), including those with disabili- purchase devices to make computers and ties.415 The Department stresses that it is obli- telecommunications systems accessibleto gated to acquire computer hardware, software employees with disabilities; applications, and other information technology fund sign language interpreters, readers, that are accessible by users with disabilities.416 and personal assistants for employees at- DOEd's Assistive Technology Team has issued tending training classes of 2 or more days; accessibility requirements that are incorporated provide "experts" who can solve accessibility in all software development contracts,417 and as problems related to computer hardware and of 1998, any software developed for DOEd under software and other "adaptive technology"; contract must meet accessibility requirements and such as: offer training and educational support.421 provide keyboard access to all functions of an Overall, the CAP's provisions are intended to application (e.g., keyboard equivalents to allmake DOD's work environments more accessible mouse actions); to employees with visual, auditory, dexterity, and include clear and precise instructions for the cognitive impairments.422 The program is based use of keyboard functions; on the philosophy that with the appropriate ac- include clear and precise labels for all icons;commodations, "people with disabilities have the and power to excel."423 Since the program's inception provide pull-down menu equivalents (that are in October 1990 through October 1994, the CAP keyboard accessible) for icon functions.418 office provided more than 6,000 accommodations "throughout the DOD community."424 U.S. Department of Defense The U.S. Department of Defense (DOD) es-State and Local Government Web Sites tablished a goal to increase the representation of Many State and local government agencies individuals with disabilities to 2 percent of itsimpart information as a service to the public employees.419 To support this goal, in 1990, DOD through networks such as the Internet. The Cali- authorized $10.7 million (over a 4-year period) fornia Department of Rehabilitation, North Caro- for the Computer/Electronic Accommodations lina Department of Human Resources, and the Program (CAP), which was the "largest and most Rhode Island Office of Rehabilitation Services are innovative initiative" in the Federal Government examples of State agencies that use the Internet to accommodate individuals with disabilities.429 to provide information on their programs and services.425 The ADA's mandate that public enti- 415 U.S. Department of Education, "Requirements for Acces- ties not deny individuals with disabilities the op- sible Software Design," Version 1.1, Mar. 6,1997, p.1 portunity to participate in or benefit from any of (hereafter cited as DOEd, "Requirements for Accessible Software Design"). 416 Ibid. 421 Ibid. 417 Judith Heumann,AssistantSecretaryforSpecial Education, and Marca Bristo, Chairperson, National Council 422 Ibid. on Disability, letter to CEOs of IBM, Netscape, Novell, Oracle, 423 Ibid. and Sun Microsystems, Mar. 9, 1998, pp. 4-5 (hereafter cited 424 Ibid. as Heumann/Bristo letter)., p. 2; and DOEd, "Requirements for Accessible Software Design," p. 1. 425 See http: / /www.catsca.com /;http://www.mindspring.com/ ncatp/; and http://www.ors.state.ri.us/, as examples of Web 418 DOEd, "Requirements for Accessible Software Design," pp. sites that describe State agencies' programs and services, from 1-2. Richard W. Riley, Secretary of Education, Dear Colleague 415 DOD, Computer/Electronic Accommodations Program, letter to each school district in the Nation on the importance brochure, p. 1. of providing accessible technology to students with disabilities, 420 Ibid. Oct. 7, 1997 (hereafter cited as Riley letter). 109 119 their services and activities426 applies to informa-ally delivered materials accessible to persons tion that State and local government entities pro-with impairments, must be furnished where vide through electronic media. Consequently, to necessary to assure effective communication, comply with the ADA, State and local govern-unless this provision results in undue burden or ments that use the Internet to provide informa- fundamental alteration of a program.431 tion about their programs, services, and other provisions must ensure that their Web pages, or Barriers Associated with Web Sites on the Internet the information provided therein, are accessible to Ideally, Web sites on the Internet should be persons with disabilities. universally designed so that they can accommo- The title II regulations stipulate that publicdate people with the widest possible range of entities cannot offer disabled individuals sepa- abilities, operating with various constraints, and rate services that are not equal to, as effectivein numerous environments.432 Universal design as, or do not lead to the same level of achieve-requires that Web pages be compatible with the ment as services provided to others.427 Unless assistive technology used by persons who cannot public entities can find suitable substitutes foraccess and use computer applications directly. Internet services, they must enable persons withAccording to the Trace Research and Develop- disabilities to take advantage of all benefits theyment Center, "there are no universal designs or make available to others through the Internet.universally designed products." Consequently, For instance, to ensure accessibility of the Inter-individuals with disabilities generally face vari- net by persons with disabilities, DOJ mentionedous barriers when attempting to access State in a technical letter that public entities couldand local governments' Internet services. provide Web sites that are compatible with Lynx According to DRS staff, determining how to browsers and/or in text (i.e., screen-readable)make information accessible to people with dis- format rather than exclusively in graphic for-abilities requires consideration of technological mats.428 In information provided to the Commis- feasibility, degree of burden, and whether infor- sion, however, DRS staff indicates that "[t]heremation is available elsewhere and in another is as yet no consensus as to technical standardsformat.433 Presently, there is no means of pro- for making websites accessible to people withviding access to computers or to the Internet disabilities, including those with impaired visionthat is accessible to all people with disabilities. or hearing."429 For instance, a variety of computer programs If a public entity cannot provide accessibility and Web sites on the Internet that require mul- to its information via the Internet or World Wide tiple keystrokes may be burdensome for persons Web, it may offer Web page information in otherwith disabilities to access; and adaptations and accessible formats, such as Braille, large print,accommodations for persons with limited man- and/or audio,for those with visual imp air-ual dexterity may not be sufficient for persons ments.430 Such aids and services that make visu-with visual impairments. Because of these technological limitations, some individuals with dis- 428 28 C.F.R. § 35.130(a) (1997). 427 Id. §§ 35.130(b)(1)(ii),(iii) (1997). pared to offer those communications through accessible 428 Deval L. Patrick, Assistant Attorney General, CRD, DOJ, means as well. Thus, a public entity, regardless of whether letter to Tom Harkin, U.S. Senate, re: accessibility of Web it provides information via the Internet or World Wide Web, also must offer the information through accessible means, pages to people with visual disabilities, Sept.9,1996, (hereafter cited as Patrick letter). such as Braille, large print, or audio. DOJ comments, July 24, 1998, p. 9. 428 John Wodatch, Chief, DRS, CRD, DOJ, letter to Freder- ick D. Is ler, Assistant Staff Director, OCRE, USCCR, June 431 Patrick letter, p. 1. See also 28 C.F.R. §§ 35.150(a)(3), 3, 1998, DRS Response to Commission's Information Re- 35.164 (1997) (undue burden provisions regarding program quest, p. 15. accessibility and communications, respectively). 438 Patrick letter, p. 1. Covered entities under the ADA are 432 Greg Vanderheiden, Trace Research and Development required to provide effective communication, regardless of Center, "Universal Design: What It Is and What It Isn't." whether they generally communicate through print media, University of Wisconsin at Madison, May 1996,p. 1 audio media, or computerized media such as the Internet. (hereafter cited as TRDC, "Universal Design"). Covered entities that use the Internet for communications 433 DRS Staff November 1997 interview, statement of Wo- regarding their programs, goods, or services must be pre- datch, p. 6. 110

120 abilities may be denied access to some electronic Technology to access Web sites and to display and information technology.434 and transmit information on the World Wide Although the World Wide Web can be an ef-Web develops and changes rapidly.Conse- fective tool for learning and communicating, itquently, regulations can become obsolete soon relies on graphics, images, and enhanced video after they are published.439 The rapid rate of de- and audio capabilities to convey information.435velopment also makes it difficult for vendors to Consequently, entire Web pages or portionscreate the "access technologies" that keep pace thereof that are not text based can be beyond thewith new information technologies. As new soft- reach of persons with visual impairments, de-ware is released to present information over the spite their use of screen readers.436 Similarly,Internet, for instance, several months can tran- individualswithhearingimpairmentsare spire without solutions or approaches for dis- barred from fully accessing audio materia1.437 abled persons to access such information.440 Most These sophisticated technologicalcapabilities of the new technological developments create can prevent full access to electronic information problems for persons with disabilities, especially networksfordisabledindividuals,unlesswhen hardware/software designers wait to pro- "accessibility is built into the technology. "438 vide guidance on issues of accessibility until their products are finalized.

434 See ibid. Lack of DOJ Guidance to State and Local 435 National Center for Accessible Media, "The Web Access Project: Access to Multimedia on the Web," November 1997, Government Entities on Web Site Accessibility p. 1 (hereafter cited as NCAM, "The Web Access Project"). DOJ has been faulted for not being suffi- 438 Ibid., p. 1; NCD, Access to the Information Superhighway, ciently proactive in addressing the issue of Web p. 30; and NCD, Access to Multimedia Technology, p. 18. site accessibility.441 DOJ has stated that "the Web sites that are primarily text based pose few limitations Internet is a valuable sources of information and for individuals with visual or hearing impairments. How- ever, individuals with these impairments can be denied the ...people with disabilities should have access to opportunity to obtain information from the increasing num- it as effectively as people without disabilities."442 ber of Web sites that include sound, graphics, videos, and However, to date, DOJ has not issued any acces- other newly developed technologies. See NCAM, "The Web sibility standards for Web sites443 and has issued Access Project," p. 1. According to the NCD, a major challenge for individuals with sensory disabilities is the "current only one policy letter, on the issue of Web site evolution" of Web sites, as they move from a text-based inaccessibility.444 DRS has not received any com- terface to a multimedia, multimodal environment. National plaints about Web sites provided by public enti- Council on Disability, Access to Multimedia Technology, ,by ties or otherwise.445 The Special Legal Counsel People with Sensory Disabilities (Washington, DC: National Council on Disability, Mar. 13, 1998), p. 18 (hereafter cited for DRS, the issue of Web site accessibility first as NCD, Access to Multimedia Technology). 437 NCAM, "The Web Access Project," p. 1; NCD, Access to the Information Superhighway, p. 36; and NCD, Access to major hurdle to achieving built-in access is that it may not be Multimedia Technology, p. 18 possible to accommodate each type, severity, and combination of disabilities. Ibid., p. xv. 438 NCD, Access to the Information Superhighway, pp. ix, 31, and 36. If accessibility is not built in, then individuals with 438 DRS Staff November 1997 interview, p. 6, statement of disabilities need to secure potentially costly hardware and Savage. software adaptations. See NCD, Access to the Information 440 NCD, Access to the Information Superhighway, pp. 30-31. Superhighway, p. 31. In contrast, with "built-in access," prod- 441 See Andrew Imparato, General Counsel and Director of ucts or systems are designed so that they can be accessed and Policy, National Council on Disability, interview in Wash- used without any assistive technologies. Ibid., p. 51. Built-in ington, DC, Oct. 20, 1997, p. 7. access ensures that there is no delay between the time a device is released for general use and the time access adapta- 442 Patrick letter, p. 2. tions are developed. Ibid., p. xiv. According to NCD, "the user 443 Jim Bostrom Architect, Technical Assistance Unit, DRS, is not left without access because third-party manufacturers CRD, DOJ, interview in Washington, DC, Apr. 16, 1998, p. 3 deem the market for access devices too small." Ibid., p. xiv. (hereafter cited as Bostrom interview). With built-in access, a public entity, for instance, can place 444 Breen interview, p. 6, referring to Deval Patrick, Assis- multimedia information on a computer screen that includes (a) tant Attorney General, CRD, DOJ, letter to Tom Harkin, a description track or (b) a caption track which allows visual U.S. Senate, re: Application of the ADA to "web pages" on information to be presented auditorily. Individuals with differ- the Internet, Sept. 9, 1996. ent abilities, limitations, and preferences can chose the presentation format that matches their needs. See ibid., p. 51. A 445 Breen interview, p. 6. 111

121 arose about 2 years ago and is not a well- The Special Legal Counsel said that technol- established area. DRS intends to monitor itogy changes so rapidly that it is difficult for the closely.446 regulatory apparatus to respond quickly enough, The one policy/technical letter in which DRSand further, the government must regulate care- addressed Web siteaccessibility stated thatfully in order not to hamper technological "[c]overed entities that use the Internet forgrowth. A DOJ architect said that some DRS communicationsregardingtheirprograms,staff want to develop Web siteaccessibility goods, or services must be prepared to offerguidelines, but added that it would be difficult to those communications through accessible meansdo so, because Internet technology is constantly as well."447 Thus, DRS does not appear to require growing and changing.459 Any guidance that full Web site accessibility for individuals withDOJ eventually developed would need to stay disabilities, only requires that the informationrelevant over time. This could be accomplished provided through the Internet be made equallyby framing the guidance in terms of what accessibletoindividualswithdisabilities "access" means rather than by providing specific through other means. technology recommendations.451 Explaining why DRS appears to consider DRS has not provided much technical assis- printedinformation,whichgenerallytakestance related to Web site accessibility. The Na- longer to receive, as an acceptable substitute fortional Institute on Disability and Rehabilitation instant information from a Web site, the SpecialResearch has produced some relevant technical Legal Counsel said that the policy/technical let- assistance materials and a Boston television sta- ter on Web site accessibility did not constitutetion, WGBH, has a Web site that also offers a lot DRS' definitive position.448 He added that theof information. DRS has not been approached by letter did not deal with a title II entity and thatany State or local governments for technical as- private businesses are not necessarily requiredsistance and guidance, but has been approached to make all of their information, particularly ad-by other Federal agencies as to how they can vertising, accessible. In contrast, he said, publicmake their Web sites accessible. DRS advised entities, are providing services, which should be them that they should offer a text-only option, as accessible.Although heacknowledgedthatDOJ provides on its Web sites. DRS monitors printed materials obviously lack the conveniencewhat the National Institute on Disability and of Web information, the Special Legal CounselRehabilitation Research does in this area.452 For said that the argument on the other side is thatinstance, in 1996, DRS staff recommended that Web sites are merely an alternative form of pro-NIDRR fund research on accessibility problems viding services to individuals and the ADA only and the World Wide Web. DRS staff recom- requires that the information be accessible tomended a study that would define the nature persons with disabilities in some other format,and extent of barriers to Web sites that indi- such as publications.449 Thus, it may not be es-viduals with disabilities could confront, identify sential for persons with disabilities to have Webpotential solutions and evaluate costs, and es- site access if the same information is provided intablish a mechanism to provide guidance and other ways. technical assistance to software developers and Internet service providers.453

446 447 Patrick letter, p. 1. 458 Bostrom interview. 448 Breen interview, p. 6. See also John Wodatch, Chief, 451 Ibid. DRS, CRD, DOJ, letter to Frederick D. Is ler, Assistant Staff 452 Breen interview, p. 7. Director, OCRE, USCCR, June 3, 1998, DRS Response to 453 John Wodatch, Chief, DRS, CRD, DOJ, letter to Freder- Commission's Information Request, p.15. ("The letter to ick D. Is ler, Assistant Staff Director, OCRE, USCCR, Feb. 6, Senator Harkin concerning Internet accessibility is an in- 1998, attachment: "ADA Related Research Issues for Dis- terim response to a complex, rapidly evolving issue. We hope cussion: Accessibility Problems and the World Wide Web," to issue more definitive, comprehensive guidance at a later DOJ, DRS, Response to U.S. Commission on Civil Rights, date.") Preliminary Information Request, no. 6 (hereafter cited as 448 Breen interview, p. 6. "ADA Related Research Issues for Discussion".

112

122 Other Activities Relating to Web Site Accessibility avoid bit-mapped text that cannot be inter- With hundreds of new Web sites being added preted by a screen reader; or provide an every day, this issue will become more urgent as ASCII-based alternative text;457 time goes by. Information disseminated by State to assist individuals with visual and cogni- and local government entities through the In- tive/language impairments, use an alterna- ternet must be accessible by individuals with tive/supplemental presentation that does not disabilities, as part of the ever-growing number rely on sight abilities (e.g., auditory format) of Internet users. Although DOJ has not issued when presenting visual information; any policy guidance on public entity Web site to benefit individuals with hearing and cogni- accessibilityfor individuals with disabilities, tive/language impairments, present auditory several other agencies and organizations have information in an alternative/supplemental attempted to address this emerging issue. mode that does not require hearing; and The Department of Education has issued ac- to assist individuals with physical and cogni- cessibility requirements to be incorporated in all tive/language impairments, include an alter- of the department's software development con- nate mechanism (e.g., "scanning" or "keyboard tracts. These guidelines stress the department's navigation") that enables individuals to access obligationtoacquire information technology the selected information when constructing components that would be accessible to use by electronic media that require fine movement individuals with disabilities.454 In addition, Sec- control and physical dexterity.458 retary of Education Richard W. Riley, in a letter In April 1997, a partnership among the World to every school district to the Nation, has urgedWide Web Consortium, the White House, the access to information technology by all students, Department of Education, and the National Sci- including those with disabilities. The letter wasence Foundation launched the Web Accessibility accompanied by a technical assistance packageInitiative to promote Internet and Web site ac- that included information on compliance withcess for individuals with disabilities.459 Issues the ADA in purchasing and modifying computercovered by the Web Accessibility Initiative in- software and hardware.455 clude: "technology developmentprotocols and The National Council on Disability also hasdata formats; tools supporting content in formats published various technical recommendations touseable by persons with disabilities; technology make Web sites accessible for persons with dis-guidelines; educational outreach; and research abilities and, with the Department of Education,and advanced development."460In February has recommended a partnership among software 1998, the Web Accessibility Initiative released companies in developing new material thatdraft guidelines to assist Web site developers in would meet accessibility requirements. The De- designing accessible Web pages.461 According to partment of Education and the National Council on Disability argue that accessible Web sites can be developed without hindering the creative ef- 457 NCD, Access to Multimedia Technology, p. 27. forts of Web page designers and that such tech- 458NCD, Access to the Information Superhighway, p. 45. In addition, the National Center for Accessible Media (NCAM) nology and software can contribute to breaking participates in the Web Access Initiative (WAI), which pro- the barriers that hinder education and employ- vides support to online service providers and Web site archi- ment efforts by individuals with disabilities.456 tects, and educates all members of the "Web community" Some of their general suggestions include: about the importance of addressing accessibility when developing new products and services. WGBH, "The Web Ac- use "alternative text" attributes to describe cess Project: The CPB/WGBH National Center for Accessible what graphical images represent; Media" brochure. 458National Council on Disability, National Disability Pol- icy: A Progress Report, July 26, 1996-October 31, 1997 454U.S. Department of Education, "Requirements for Acces- (Washington, DC: National Council on Disability, Oct. 31, sible Software Design," version 1.1, Mar. 6,1997, p.1 1997), p. 27 (hereafter cited as NCD, National Disability (hereafter cited as DOEd, "Requirements for Accessible Policy). Software Design"). 488Heumann/Bristo letter, p. 2. 455Riley letter and attachment. 461Web Accessibility Initiative, "Web Accessibility Initiative 456Heumann/Bristo letter, pp. 4-5. Draft Guidelines Make Web More Accessible," press release, 113

123 BEST COPY AVAILABLE the Director of the Web Accessibility Initiative The American Printing House for the Blind's International Office, the guidelines are intendedrecommendations for Web site development in- to be a "key reference for web authors and site clude: (1) State and local government entities builders" to ensure that their Web sites can beshould create Web pages that can be manipu- "reached by the broadest possible audience. "462 lated by visually impaired individuals; and (2) The technical guidelines focus on strategies to providers of Web sites should focus on the con- improve (a) the coding language (HTML 4.0) oftent/text, avoid tables and graphics, have strong Web pages,463 (b) page layout formats, and (c)contrast between the background and print, and Web site navigation.464 be "mouse independent"(i.e.,use keyboard The National Federation of the Blind has is-equivalents). Web pages with these characteris- sued guidelines to ensure maximum accessibilitytics can be virtually 100 percent accessible by and usability of Web pages by visually impairedindividuals who rely on screen access readers individuals.465 Some of the federation's sugges- and voice synthesizers to communicate with tions for Web pages include: (1) layout should be their computers.468 simple and side-by-side presentation should be In January 1996, the Corporation for Public avoided; (2) screen access technology used byBroadcasting/WGBH Educational Foundation's visually impaired individuals should show in-National Center for Accessible Media (NCAM), formation on a computer, one line at a time,initiated a Web Access Project. The project aims reading across, because information presented into research, develop, and evaluate methods of columns could be confusing, especially if it is en-integrating "access technologies" (such as audio countered unexpectedly; and (3) bulleted listsdescription) and new "Web tools" into Web sites should be used rather than long text descriptionsso that they are "fully accessible" to visually and that tend to clutter screens without providinghearing impaired Internet users. NCAM has useful information.466 In addition, when "image partnered with software and hardware manufac- maps" are used on the Web pages, an alternate turers, the Federal Government, and other enti- means for selecting the items contained withinties to disseminate technology, methods, and the maps should be provided. Information on ainformation to enhance Web site accessibility. Web page can be placed above or below an image According to the director of the Web Access map, for instance, and should be accompanied by Project, as of April 1998, the Arizona Depart- instructions for the user.467 ment of Archives and Public Records and the City of San Jose, California, are the two public entities that have had their Web sites reviewed by the National Center for Accessible Media.469 Feb. 3, 1998 (hereafter cited as WAI Press Release). The As of February 1998, San Jose had completed technical guidelines focus on strategies to improve (a) the coding language (HTML 4.0) of Web pages, (b) page layout "groundbreaking work" in the area of "accessible formats, and (c) Web site navigation. Web design" and is the first government jurisdic- 462 WAI Press Release, p. 1. tion in the Nation to implement a "Web accessi- 463 The use of HTML 4.0 allows for more structured forms bility policy."'" The guidelines for accessible de- and form menus, and better support for keyboard naviga- sign are intended to ensure that Web sites action. According to the American Foundation for the Blind, commodate all individuals regardless of their the use of HTML 4.0 can ensure "equal access to a great deal of Web content" for visually impaired individuals and ages, language and literacy capabilities, disabili- others who rely on keyboard navigation or text-only dis- ties, or computer preferences.4" The City of San plays. See WAI Press Release, p. 2. The Royal Institute for the Blind reported that the improvements of HTML 4.0 for 468 Christine Anderson, Resource Services Manager, Ameri- Web sites ensures the inclusion of disabled indiViduals into can Printing House for the Blind, Louisville, KY, telephone the "World Wide Web community." Ibid. interview, Apr. 2, 1998. 464 WAI Press Release, p. 1. 469 Geoff Freed, Director of the Web Access Project, National 465 National Federation of the Blind, "Eight Guidelines For Center for Accessible Media, telephone interview, Apr. 7, Web Page Accessibility," no date (hereafter cited as NFB, 1998, p. 1 (hereafter cited as Freed interview). "Guidelines"). 479 WAI Press Release, p. 3. 466 Ibid., pp. 1-2. 471 DOEd, "Requirements for Accessible Software Design," 467 Ibid., p. 2. p. 1. 114

= 12414 Jose is adapting all its Web sites, both home photographs to their respective descriptions, (b) page and departmental pages, and all futureinclude "text transcriptions" for audio and video Web sites will follow technical standards devel-clips; and (c) avoid use of tables with more than oped by the city.472 two columns of text. In addition, all image maps The Web Access Project director indicatedwill be connected to text that can be interpreted that there are no "official standards" with re-by a screen reader. San Jose also intends to link spect to designing accessible Web sites. Althougheach of its Web sites to a supplemental page on the City of San Jose may refer to its guidelines"access instructions" that assists individuals for accessible design as "standards," they are with disabilities in browsing the Web sites.473 actually recommended practices, such as: (a) link

472 Freed interview, pp. 1-2. 473 See Freed interview, pp. 1-2.

115

125 Title II Outreach, Education, and `.° Technical Assistance

The Americans with Disabilities Act required Technical Assistance Plan the responsible Federal departments and agen- The proposed plan defined technical assistance cies to provide technical assistance as an inte- as "the provision of expert advice, and both gen- gral part of the pre- and post-implementationeral and specific information and assistance to the phases. The Department of Justice, in consulta- public and entities covered by the ADA."3 The tion with the Equal Employment Opportunity purposes of the technical assistance were "to in- Commission, the Department of Transportation form the public (including individuals with rights (DOT), the Architectural and Transportationprotected by the Act) and covered entities about Barriers Compliance Board (ATBCB), and thetheir rights and duties; and to provide informa- Federal Communications Commission (FCC), tion about cost-effective methods and procedures was required to develop a technical assistance to achieve compliance."4 The technical assistance plan to assist entities covered by the ADA, and plan proposed to make use of virtually all avail- other Federal agencies, in understanding their able types of communication. These included pub- responsibilities under the new law.1 This waslications, exhibits, videotapes, public service an- the first time that a Federal civil rights law re-nouncements, and electronic bulletin boards. The quired the provision of technical assistance. plan stated that it was essential the information Although the ADA recognized the importance and materials be disseminated in alternate for- of technical assistance, it did provide that no mats (e.g., Braille, large print, closed caption, etc.) covered entity could use failure to receive tech- so that it is understandable to individuals with nical assistance as a reason for noncompliance different disabilities.5 In addition, the plan re- with the statute. Specifically the law stated: quired the responsible Federal agencies, under DOJ's leadership, to make presentations at con- An employer, public accommodation, or other entity covered under this Act shall not be excused from com- ferences and workshops and conduct training pliance with the requirements of this Act because ofprograms nationwide. The agencies were man- any failure to receive technical assistance under thisdated to provide detailed advice to individuals on section, including any failure in the development or specific topics or in the resolution of a specific dissemination of any technical assistance manual problem through such mechanisms as telephone authorized by this section.2 hotlines, information clearinghouses, or onsite

3 Technical Assistance Plan for the Americans with Disabili- Pub. L. No. 101-336, § 506 (a)(1), 104 Stat. 337, 371 (1990) ties Act, 55 Fed. Reg. 50,237, 50,239 (1990) (DOJ-proposed (codified at 42 U.S.C. § 12206 (a)(1) (1994)). technical assistance plan). 2 Id. § 506(e), 104 Stat. 337, 372 (1990) (codified at 42 U.S.C. 4 Id. § 12206 (e) (1994)). 5 Id.

116 126 experts.6 Finally, the agencies were to establish athe Small Business Administration (SBA), the number of clearinghouses to collect and share in- Department of Commerce (DOC), and other Fed- formation on the experiences of covered entitieseral "agencies with technical assistance respon- and individuals. Information for the clearing-sibilities and activities that the Attorney Gen- houses was to be systematically collected and eral may identify and invite to participate."10 shared "to enhance the development, assessment, The representatives of the agencies coordi- and replication of new and improved compliancenating technical assistance activities were to methods and techniques."7 "meet at least twice annually."11 The Working A long term goal of building the relationshipGroup, which is now called the ADA Technical betweentheFederalagenciesandtheseAssistanceCoordinating Committee andis "grassroots" organizations was to "build the ca-chaired by the Department of Justice, generally pacity of these organizations to provide technicalmeets every 3 to 4 months to exchange informa- assistance to their respective constituencies" intion, coordinate efforts, and deal with technical the future.8 The organizations were to assist theassistance issues that arise.12 Because there was a agencies in defining the "differing problems and heavy initial workload associated with developing technical assistance needs" of the various groupsand implementing the technical assistance pro- represented by the disability community. Theygram, the group met every 2 to 3 months in the were expected to participate in development andfirst few years of ADA implementation efforts.13 delivery of the technical assistance initiatives. Now 22 agencies involved in ADA enforcement Both DOJ and EEOC made extensive use of the and technical assistance participate in the Inter- disability rights organizations in their trainingagency Coordinating Group." The group was ex- and development, production and disseminationpanded by DOJ because the impact of the law was of the technical assistance materials.9 greater than initially contemplated, e.g., the Na- tional Endowment for the Arts, which deals with Interagency Coordination accessibility issues for museums.16 To assure that the development and implementation of the Federal Government's ADA Reporting technical assistance efforts were effective, com- The plan further provided that the Depart- prehensive, and maximized the available re-ment of Justice would prepare an annual report sources, the plan required the Department ofdescribing technical assistance provided by or on Justice to establish and chair a Technical Assis-behalf of the Federal Government in support of tance Working Group. It was initially composedthe ADA. The report was to be issued by Decem- of the four implementing agencies (DOJ, EEOC,ber 31 of each year.16 However, according to the DOT and FCC) and representatives from thechair of the ADA Technical Assistance Coordi- ATBCB, the National Council on Disabilitynating Committee for DOJ, no annual reports on (NCD), the President's Committee for the Em- technical assistance were issued.17 But there is a ployment of People with Disabilities (PCEPD),section on technical assistance efforts in the quarterly Enforcing the ADA: A Status Report 6 Id. The four agencies with primary responsibility for implementing the ADA were identified as the Department of Justice, the Equal Employment Opportunity Commission, 10 55 Fed. Reg. at 50,240. the Department of Transportation, and the Federal Com- 11 Id. munications Commission. Id. 12 Roster of ADA Technical Assistance Coordinating Com- 7 Id. mittee, Feb. 3, 1998. 8 Id. 13 Ruth Lusher, Technical Assistance Manager, DRS, CRD, 9 Ruth Lusher, Technical Assistance Coordinator, Disability DOJ, interview in Washington, DC, Mar. 18, 1998 (hereafter Rights Section (DRS), Civil Rights Division (CRD), U.S. De- cited as Lusher March 1998 interview). partment of Justice (DOJ), interview in Washington, DC, Dec. 14 DOJ, CRD, DRS, DOJ ADA Technical Assistance Pro- 4, 1997 (hereafter cited as Lusher December 1997 interview) gram, January 1993-June 1997, attachment B, p. 6. and William White, Acting Director, Office of Communications 16 Lusher March 1998 interview. and Legislative Affairs, U.S. Equal Employment Opportunity Commission (EEOC), interview in Washington, DC, Dec. 5, 16 55 Fed. Reg. at 50,240. 1997 (hereafter cited as White interview). 17 Lusher March 1988 interview.

117 127 BEST COPY AVAILABLE from the Department of Justice.18 The first reportof their contractors and grantees. The DRS staff was issued in July 1993.19 has attempted to collect and place this informa- The information in the sections on technicaltion in a database but has run into several com- assistance in the status reports is not nearly asputer-related problems over the years. Most of comprehensive as envisioned in the annualthese problems have now been corrected, and a technical assistance report called for in the pro-report is expected to be issued in 1988.23 posed Technical Assistance Plan issued in De- cember 1990. For example, the Technical Assis-DOJ Technical Assistance Program tance Section in a recent ADA Enforcement Early Implementation Efforts Status Report states briefly the requirement DOJ's ADA technical assistance and outreach that DOJ provide technical assistance on theprogram is in Washington, D.C., in what is now ADA. The introductory statement describes gen- the Disability Rights Section of the Civil Rights erally the kinds of information sources that areDivision. The Department has no regional, dis- available to those with duties and rights undertrict, or field offices. From the beginning, DOJ the law. The section gives information on DOJ'ssaw technical assistance as a distinct and essen- ADA home page, the ADA information line, the tial part of implementing ADA.24 ADA fax on demand system, and publications. Initially, the Office of the Americans with There is an advisory on a new ADA publication,Disabilities Act (OADA), which was part of the which also provides information on other Fed- Coordination and Review Section (CORS) of the eral sources of ADA information,includingCivil Rights Division, had few staff and relied on EEOC, FCC, DOT, ATBCB, and PCEPD.20 other CORS staff to assist in the technical assis- The Attorney General was further mandatedtance effort. Over time, the Department devel- to prepare guidelines for annual updates to theoped specialized staff, publications, and services Technical Assistance Plan by the agencies repre-to carry out its technical assistance mandate. In sented in the Working Group. The Attorney Gen-October 1992, OADA became a separate sec- eral also had the authority to require other agen-tionthe Public Access Section. It was later re- cies having technical assistance responsibilities tonamed the Disability Rights Section.25 submit updates that "describe progress made Staff assigned to the ADA was small initially. during the past fiscal year to implement the pro-Between fiscal years 1991. and 1993, staff in- visions of ADA and this plan, the results of any volved in the technical assistance effort included assessments or evaluations of technical assistancefour full-time and one part-time professionals delivery or innovative methods or procedures toand two to four contractors. Attorneys, archi- promote compliance, and program initiatives pro-tects, and other professional staff supported the posed for the current fiscal year."21 No formal up-technical assistance program by serving shifts on dates on progress in implementing the ADA andthe ADA information line, drafting technical as- the plan were ever completed.22 However, DRSsistance materials, reviewing materials devel- sent out a survey to a large group of Federaloped by grantees, and participating in the ADA agenciesincluding many not envisioned by Con- speakers' bureau. Support staff included one gress when the ADA was enactedinviting themfull-time clerical and three to four half-time to participate in the ADA Technical Assistance stay-in-schoolstudents.26In1993,Attorney Working Group and share their ADA plans andGeneral Reno authorized additional term staff- activities, including the plans and outreach effortsing resources, which permitted the attorneys

18 Ruth Lusher, Technical Assistance Program Manager, DRS, CRD, DOJ, telephone interview,Feb.23,1998 23 Ibid. (hereafter cited as Lusher February 1998 interview). 24 Lusher February 1998 interview. 19 Lusher March 1998 interview. 25 DOJ, CRD, DRS, answers to U.S. Commission on Civil 20 DOJ, CRD, DRS, Enforcing the ADA, A Status Report from Rights Questions to Ruth Lusher, Technical Assistance Co- the Department of Justice (October - December 1997), pp. 12-14. ordinator, Apr. 20, 1998 (hereafter cited as DOJ Answers, 21 55 Fed. Reg. at 50,240. Apr. 20, 1998). 22 Lusher March 1998 interview. 26 Ibid.

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128 and architects to work on more complaints andmedia story or some other event occurs that other ADA implementation responsibilities.27 publicizes the ADA.33 For example, after distrib- This report focuses on 'technical assistanceuting ADA information in an IRS quarterly provided in support of title II. (DOJ is also re- mailing to more than 6 million small businesses, sponsible for technical assistance for title III.) DOJ received 100,000 telephone calls.34 DOJ was required to issue regulations imple- Early efforts were also made to develop and menting the nontransportation requirements ofdistribute general ADA information materials title II by July 26, 1991, and State and local gov- such as fact sheets, pamphlets, and copies of the ernment operations were required to be in com- law, which were printed in alternative formats. pliance by January 26, 1992.28 By May 1993, the Department had disseminated DOJ was expected to expand existing techni-over 2 million copies of the regulations, publica- cal assistance activities designed to ensure thattions, and fact sheets.35 DOJ also established a entities and individuals covered by title II learnspeakers' bureau to make DOJ staff available for about the ADA's requirements and develop thespeeches and participation in workshops, semi- capabilitytoidentify" and solvecompliance nars,classes,conferences,conventions,and problems. The goal was to provide technical as- other similar outreach efforts.36 The Department sistance to as many entities as possible over the also. created an exhibit for use at such gather- term of the plan (fiscal years 1991-1994).29 ings to focus attendees' attention on the ADA In July 1990, DOJ established an informationand to facilitate the distribution of materials.37 hotline to respond to requests for informationThe Department staff made an increasing num- from covered entities and individuals.30 Attorneysber of appearances at conferences, averaging and architects in DOJ staffed the hotline, to the approximately 120 per year after implementa- point of its interfering with their work on investi- tion until fiscal year 1995 and the govern- gating and litigating complaints. In 1993, Attor-mentwide furloughs. For example, in fiscal year ney General Reno authorized the hiring of, 101992, there were 173 speaking engagements and term employeeswho serve up to 4 yearstothe exhibit was shown at 5 conferences.38 How- staff the information line and carry out otherever, since the fiscal year 1996 shutdowns and technical assistance activities. Most of the firstfurloughs, DOJ has only averaged about 60 ap- hired were members of the disability communitypearances a year. In fiscal year 1996, there were or were active in disability rights efforts. Many of67 speaking engagements on ADA and in fiscal these staff members had also completed the Dis-year 1997, there were 61 speaking engage- ability Rights Education and Defense Fundments.39 The drop in speaking engagements is (DREDF) training on the ADA, given in 1992 andalso partly because of limited financial resources 1993. DRS has managed to keep..the slots filledfor technical assistance since fiscal year 1996.40 during the last 4 years and retain the staff.31 DRS has requested that the 10 positions be Pre-1993 Implementation Efforts made permanent in the fiscal. year 1999 budget Little documentation is available on Justice request.32 On an average day, the informationDepartment technical assistance efforts before line receives 400 calls, one-third of which arefiscal year 1993. DRS staff did provide a state- handled by ADA specialists; the remaining call-ment prepared for the Inspector General in ers are ordering publications or obtaining information through the automated system. The 400 call volume more than doubles when there is a r See DOJ Comments, July 24, 1998. 34 Lusher December 1997 interview. 27 Lusher March 1998 interview. 35 Lusher March 1998 interview. 28 Pub. L. No. 101-336, §§ 106,246, 104 Stat. 327,336,353 36 55 Fed Reg. at 50,242. (1990) (codified at 42 U.S.C. §§ 12116, 12161 note (1994)). " Id. 29 55 Fed. Reg. 50,242. 38 U.S. Department of Justice ADA Speaking Engagements 30 Lusher December 1997 interview. and Exhibits Information Sheet. 31 Lusher March 1988 interview. 39 Ibid. 32 Ibid. 40 Lusher December 1997 interview.

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129 BEST COPY AVAILABLE 1993, which described some of these early out- DOJ does not include the salaries of the employ- reach efforts: ees who had other ADA program responsibilities, Two IRS mailings were sent out that reachedit does illustrate the variance in funding since 6 million businesses both in 1992 and in 1993.ADA was enacted. In fiscal year 1991, there was One mailing provided the telephone number for a $2 million nonrecurring increase for technical the Department's information line and the otherassistance, for a total allocation of $4,040,000. In offered to send information to those who sent infiscal year 1992, the total technical assistance the business reply card. fund was $2,324,000. In fiscal year 1993, the A mailing was sent out to 7,600 supermarketsfunds peaked at $4,584,000. Funding for techni- for placement of ADA materials on their publiccal assistance has declined every fiscal year bulletin boards. The mailing also included a cardsince then, and in fiscal year 1997, the money for ordering additional information. The De- received was only $2,900,000.41 partment estimated these supermarkets served 120 million shoppers per week. Technical Assistance Manual Through the National Council of State Leg- In fiscal year 1991, DOJ began to focus its islatures, more than 90,000 State and local offi-technical assistance efforts on additional re- cials were mailed reply cards for ordering ADA search, requests from contacts, and information materials. received during the process of issuing regula- A mailing with a letter from the Assistanttions.42 One of the earliest efforts was the devel- Attorney General for Civil Rights was sent toopment and distribution, in conjunction with 15,000 architects and other design and construc- EEOC, of the ADA Handbook. tion officials in 15 States with active building This comprehensive handbook provided infor- projects to offer ADA technical assistance. mationsome of it highly technicalon compli- Early versions of ADA Questions and An-ance requirements of titles I, II, and III of the swers and fact sheets were distributed; theyADA. It was widely distributed, at no cost, in were in Spanish and in alternative formats, e. g.,January 1992 to private employers, State and lo- Braille, large print, audiotape, and computercal governments, libraries, the disability rights disk. The "Q & As" have been revised severalcommunity, etc. The handbook contained infor- times since the ADA was enacted. mation on the hotlines for DOJ and EEOC. The The ADA Technical Assistance Manual wasinformation line telephone number provided, at distributed in January 1992 and a revised ver- that time, for DOJ was not toll free while EEOC's sion was sent out in 1993. was toll free. Also included in the handbook was a An ADA Handbook was sent out in the fall ofcopy of the ADA statute and an ADA resource list. 1991 and a revised one was sent out in Decem- The approximately 380-page handbook also in- ber 1992. It contained the regulations, with ac- cluded sections such as ADA Accessibility Guide- cessibility standards, questions and answers, alines, Uniform Federal Accessibility Standards, list of resources, etc. Summary Chart on Coverage and Effective Dates, The DOJ maintained a speakers' bureau thatTerms Defined in Statute and Regulations, Sum- provided speakers for professional meetings andmary of Legislative History and Related Informa- training conferences to explain the ADA to intion, Disability-Related Tax Provisions Applicable terested organizations, business groups, and to Business, Supreme Court Cases Related to Sec- Federal agencies. tion 504, Opinions Related to Section 504 of the DOJ operated an information line and anAttorney General and the Office of Legal Counsel, electronic bulletin board through which ADARelated Federal Disability Laws, ADA Questions documents could be downloaded by individualsand Answers, and ADA HighlightsTitle II and with computer modems. These are still available ADA HighlightsTitle III. but have been improved over the years. Funding for the Disability Rights Section's ADA technical assistance program varied be- Al Budget InformationDisability Rights Section FY 1991 to tween fiscal year 1991 and fiscal year 1997. Al- FY 1998, provided by DRS. though the information on funding provided by 42 55 Fed. Reg. at 50,242. 120

130 The ADA required that each Federal agencyTraining and Education Programs responsible for implementing the law produce and Training was a second area that received con- distribute a technical assistance manual to cov-centrated attention from the outset.51 In 1991 ered entities and individuals.43 The technical as-and 1992, DOJ, in conjunction with EEOC, con- sistance manual(s) was to be distributed "no laterducted joint training, funded through a contract than 6 months after applicable final regulationsto DREDF. Under joint oversight by the two are published under Titles I, II, III, and IV."44 agencies, DREDF conducted "train the trainers" The final Department of Justice regulationstraining in phase I for 400 who were for the most on title II were published in the Federal Registerpart involved in the disability rights movement. on July 26, 1991,45 and the Technical AssistanceOnce trained they were expected to train others Manual was issued in January 1992. Updatesin employer groups, other covered entities, cov- were issued in 1993 and 1994.46 ered individuals, and others. In phase II, 100 of DOJ has no plans to update the Technical As- these trainers received advanced training that sistance Manual because the technical assis-focused, in part, on alternative dispute resolu- tance program approach now favors targetedtion. The participants were trained and certified brochures, such as Q & As on specific topics. as mediators. Further, the Chief of the Disability Rights Sec- In phase I, five sessions, lasting 5 to 6 days, tion said that the Federal courts have begun towere held around the country. Participants in- give deference to the manuals because the cluded people with disabilities, parents of indi- agency's interpretation was contemporaneousviduals with disabilities, facilitators for informa- with the passage of the ADA and the issuance of tion access, and Federal ADA grantees of DOJ Department regulations. To avoid the risk ofand the Department of Education's National In- losing this deference, DRS has decided not to stitute on Disability and Rehabilitation Research continue issuing updates to the manuals.47 (NIDRR).52 The phase I participants trained al- There also were plans for the Technical Assis- most 60, 000 people, including 18, 336 persons tance Manual to be placed on CDROM, accord- with disabilities; 12,332 employers; 13,040 State ing to the 1990 Technical Assistance Plan.48 The and local governmental personnel; 9,181 public CDROM project was not done in 1993 becauseaccommodations personnel; 4,239 parents of per- people with disabilities and covered entitiessons with disabilities; and 598 alternative dis- could not use this technology due to insufficientpute resolution (ADR) personnel. In phase I, 416 equipment.49 People with disabilities and cov- ADR negotiations were also attempted.53 ered entities now typically have the equipment, More than 80,000 people were trained by the and DRS plans to make the Technical Assistance 100 participants who received both phase I and Manual available in CDROM and in other for-phase II training, including 22,039 persons with mats in the next year or so.50 disabilities, 16,968 employers, 17,976 State and local governmental personnel, 16,835 public accommodations personnel, 5,642 parents of persons with disabilities, and 747 ADR personnel. There were 332 ADR negotiations attempted. In addition to the grant requirements, technical assis- 43 42 U.S.C. § 12206 (c)(3) (1994). tance activities by participants included: 900 arti- 44Id. cles published in newsletters and journals; 48 con- 45 Nondiscrimination on the Basis of Disability in State and tinuing contributions to newsletters targeted to Local Government Services, 56 Fed. Reg. 35,694-35,723 persons with disabilities, employers, and other (1990) (codified at 28 C.F.R. pt. 35). coveredentities; 4instructional/informational 46 Lusher March 1998 interview. 47 John Wodatch, Chief, DRS, CRD, DOJ, interview in 51 Lusher December 1997 interview. Washington, DC, Apr. 16, 1998. 52 EEOC, Americans with Disability Act (ADA) Training and 48 55 Fed. Reg. at 50,243. Implementation Network List of Participants, September Lusher March 1998 interview. 1993. 5° Ibid. 53 Lusher March 1998 interview.

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131 videotapes on ADA implementation done by ancal assistance program grants were awarded to independent producer and distributed to employ-groups involved in disability rights, but most were ers and others; 70 local access broadcast stationawarded to such groups as the U.S. Conference of appearances by project participants to discussMayors, the Police Executive Research Forum, ADA and its impact; 3 continuing television series National Association of Towns and Townships, involving participants (2 on PBS stations); and 3and other entities that had responsibilities under overseas presentations on ADA. Ten of the par- title II or title III of the ADA.58 Most of the devel- ticipants were recipients of local, State, or na- opment grants are coming to an end. DRS staff is tional awards recognizing their efforts to promotelooking into producing informational materials effective ADA implementation and full inclusioninhouse in the future; many will be updates or of people with disabilities.54 revisions to previously issued publications.59 The goal of these initial technical assistance Technical Assistance Grants and Contracts efforts was to inform and train covered entities Another area of focus during the initial im-about ADA requirements and how to solve com- plementation phase was the awarding of grantspliance problems. Included in the information and contracts to nonprofit organizations to de-that DOJ proposed to disseminate were exam- velop technical assistance materials. The ADAples of model compliance strategies and the offer authorized grants to individuals and entitiesof assistance to covered entities in achieving who had duties and rights under the statute.compliance. During this initial phase, DOJ pro- The grants and contracts technical assistanceposed in the Technical Assistance Plan efforts to program was set up to ensure broad dissemina-determine the most effective types of information of information about the rights and dutiestional and training materials and mechanisms established by the ADA and to provide technicalfor delivery of training for the different audi- assistance on effective compliance techniques.55 ences that they were mandated to reach.60 In the first few years, an average of 20 techni- One of the other methods of technical assis- cal assistance grants was awarded per year. Intance that DOJ planned to use was teleconfer- fiscal year 1991, there was one soliciation and 15 encing and videotaping training sessions to dis- grants; 4 were awarded in fiscal year 1992. In fis-seminate information on the ADA.61 The staff cal year 1993, 22 grants were awarded and 5 sup-conducted teleconference training in January plemental awards were made to original grantees 1992 for the American Institute for Architects with continuing grants. In fiscal year 1994, 12 and did another teleconference in June 1997.62 grants and 7 continuing grants were awarded. In DOJ proposed to use varying presentation for- fiscal year 1995, 21 grants were awarded and 5mats and questions and answers in the training grants continued. In fiscal year 1995, the De-sessions and videotapes. The technical assis- partment of Justice began State-based communitytance plan also stated that wherever possible education grants designed to build networks sup- other agencies involved in enforcing the ADA or porting ADA among the various State and localproviding technical assistance about the ADA governmental agencies. In fiscal year 1996, 14would be asked to participate in these confer- grants and 4 continuing grants were awarded. Inences.63 Many of thesewereaccomplished fiscal year 1997, there was no solicitation becausethrough the grant program and included train- of funding limitations, but supplemental funding ing videos developed by the Disability Rights was provided to 3 continuing grants.56 It has Education and Defense Fund and Building Own- taken about 2 to 3 years to publish and distribute ers and Mayors Association International.64 the technical assistance material from the time that the grant was awarded.57 Many of the techni- 58See DOJ Comments, July 24, 1998. 59Lusher March 1998 interview.

54The Americans with Disabilities Act Training and Techni- 6055 Fed. Reg. at 50,242 50,243.

cal Assistance for People with Disabilities. 61Id. at 50,243.

5542 U.S.C. § 12,206(d)(1),(2) (1994). 62Lusher March 1998 interview.

56Lusher March 1998 interview. 6355 Fed. Reg. at 50,243.

57Lusher December 1997 interview. 64See DOJ Comments, July 24, 1998. 122

132 The Department of Justice conducted train- A toll-free ADA information line was set up to ing on title II requirements for staff in other provide information and free publications to the Federal agencies who have significant contactpublic about the ADA requirements. It operates with persons with disabilities or are involved inwith both 24-hour automated service and ADA ADA enforcement. The initial plan included staffspecialists staffing it 8 hours per day except in the U.S. attorneys' offices, the Rehabilitation Thursday when it is staffed for 5 hours. There are Services Administration, and the civil rights of- telephone numbers for voice and TDD. Spanish- fices of other Federal agencies.65 In addition to language service is also available. The ADA in- training staff in the U.S. attorneys' offices, the formation line received 76,000 calls in fiscal year DRS staff has trained Federal employees at the 1995, 88,000 calls in fiscal year 1996, and more Park Service, GSA, Transportation, Labor, and than 160,000 calls in fiscal year 1997.68 other agencies. Fourteen ADA Enforcement Status Reports were developed; they provide information on the More Recent ADA Implementation Efforts Department of Justice's enforcement, technical Between fiscal year 1994 and 1997, the pro-assistance, and certification activities for the fessional staff engaged in technical assistance ADA since 1993.69 These reports are widely dis- has grown to 16 full-time professionals. Attor-tributed to libraries and organizations involved neys support the technical assistance effort byin ADA enforcement and are available on DOJ's serving as attorney-of-the-day to answer com- Internet home page. plex questions from the technical assistance Publications were developed to deal with staff, drafting and reviewing some technical as- ADA-related issues for specific segments of soci- sistance materials, and by participating in theety, including as six publications in a simple ADA speakers' bureau. One full-time clericalquestion and answer format providing ADA in- staff person and 3 to 4 half-time stay-in-school formation on the following topics: State and local students provide support to the DOJ technical governments,telephone emergency response assistance and outreach efforts.66 (911) centers, child care centers, HIV/AIDS, law The responsibility for ADA technical assis- enforcement, and hiring police officers.70 tance remains within the Disability Rights Sec- A publication was created in a simple question in Washington, D.C. Resources were sup-tion and answer format titled, ADA Myths and plemented with assistance and outreach by theFacts, which provided basic information for U.S. attorneys' offices throughout the UnitedState and local governments and businesses to States. These offices were used to assist in spe-dispel common misconceptions about the ADA's cific outreach programs, such as the "911" emer- requirements.n gency response effort to local police departments An ADA home page was created. The home nationwide.67 page provides information about: the ADA information line, ADA technical assistance program, Use of Varied Communications Methods ADA enforcement efforts, activities to provide cer- After title II and other provisions of the ADAtification of State and local building codes that became effective, DOJ staff continued their im- meet ADA accessibility standards, and proposed plementation efforts for the ADA. During thischanges in ADA regulations and requirements. time, many of the initiatives that had been pro- The Department's Web site also provides access to posed in the Technical Assistance Plan and inADA regulations and technical assistance materi- the formulation stage before 1993 were com-als. Information can be viewed online or down- pleted. The following are some examples of the varied technical assistance efforts carried out by ss ADA Technical Assistance Program, January 1993 to DOJ to communicate the ADA requirements: June 1997, attachment B, page 1, prepared by DRS, CRD, DOJ, 1997 (hereafter cited as DOJ ADA Technical Assis- tance Program). 65 55 Fed. Reg. 50,243. 69 Ibid., attachment B, p. 2. 66 Lusher March 1998 interview. 79 Ibid., p. 3. 67 Lusher December 1997 interview. 71 Ibid.

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133 loaded. Links are also provided to other Federalwith the Department's Office of Public Affairs. agencies' electronic bulletin boards or InternetThe PSAs feature Attorney General Reno out- sites that have ADA information. As of late fiscallining the basic requirements of the ADA and year 1997, the ADA home page was receiving be-publicizing the availability of ADA information tween 30,000 and 100,000 hits per week.72 Infor- in public libraries and the toll-free ADA informa- mation on the home page is accessible to the pub- tion line.76 After several years, the radio PSA lic in a large number of public libraries. continues to be aired on radio stations. Subse- There were several written communicationsquently, a second PSA was developed featuring to the centers for independent living on available President Clinton. The PSA publicizes the ADA ADA information materials. and the toll-free ADA information line and was A publication, "Strategies for Teaching Uni- distributed to 4,000 radio stations.77 versal Design," was distributed to libraries of This use of a variety of communications me- 200 schools of architecture. A letter was sent todia has enabled the Department of Justice to the deans of these schools informing them thatreach large segments of the population. DRS the publication had been sent to their libraries.73 staff attempted, in the early implementation ef- Through grants to organizations in the dis-forts, to deal with the broad range of issues re- ability rights movement, DOJ has developed alated to ADA and to reach a large audience at number of educational videotapes such as: Accessthe business, governmental, and grassroots lev- for Deaf Americans, a 65-minute videotape pro-els. More recently, the DRS staff is targeting duced by the National Center for Law and Deaf-State-based organizations to deal with issues at ness explaining the ADA in sign language, withthe grassroots level because it believes this will voice-over and subtitles; Explaining the ADA, abe a more effective method for promoting ADA series of five videotapes produced by the Accesscompliance at the local level through the techni- Video Fund, explaining the background of the cal assistance program.78 ADA, definitions, and the requirements for telecommunications, employment, State and localExtensive Efforts to Reach a Broad Audience governments, public accommodations and trans- DOJ has also made extensive efforts to dis- portation; and My Country, a one-hour documen- seminate the ADA technical assistance materials tary produced by the Access Video Fund, in which and information to a large, diverse group of or- conductor James De Priest (nephew of Marion An- ganizations and entities to ensure that the mate- derson) profiles three people with disabilitiesrial is widely accessible to covered organizations whose lives have been shaped by the struggle for and individuals. For example, since January equal rights.74 The latter video, which is of high 1993, DOJ had distributed more than 30 million production quality, effectively communicates topublications and information pieces throughout the audience that ADA-mandated disability rights the United States.79 In addition to the informa- are civil rights. The documentary has been shown tion line, publication distribution system, and on Public Broadcasting System stations and willthe ADA home page on the Internet, DOJ has be distributed to the centers for independent liv- carried out the following outreach efforts to ing, the disability business technical assistancereach large segments of the public to educate centers, and the representatives of participatingthem about the ADA: agencies on the Technical Assistance Coordinat- An ADA information file was placed in 15,000 ing Committee.75 public libraries throughout the country. The file Public service announcements (PSAs) for ra- contains 95 publications developed by DOJ, other dio and television were developed in conjunction

72 Ibid., p. 1. 76 DOJ ADA Technical, Assistance Program, attachment B, 73 Overview of ADA Technical Assistance Efforts, (FY 91FY P. 5. 93; prep. For IG), undated. 77 DOJ ADA Technical Assistance Program, p. 6. 74 DOJ ADA Technical Assistance Program, attachment D, 78 Lusher December 1997 interview. p. 1. DOJ ADA Technical Assistance Program, attachment B, 75 Lusher December 1997 interview. IL 3. 124

1 3 4 Federal agencies, and ADA grantees. Several of More than 185,000 ADA Questions and An- the publications in the file are in Spanish.80 swersbookletsweredistributednationally A packet of 33 ADA publications related tothrough the Federal Consumer Information Cen- titles II and II was distributed to 6,000 localter in Pueblo, Colorado.87 chambers of commerce nationwide.81 O Technical assistance was provided to 10 re- Four hundred and thirty centers for inde-gional disability and business technical assistance pendent living were provided with a collection ofcenters (DBTACs), which are funded by the De- ADA materials and videotapes and current in-partment of Education, to assist them in re- formation about ADA publications and informa- sponding to questions about specific requirements tion services available from the Federal Gov-of the ADA. They were also given technical assis- ernment. DOJ continues, on a regular basis, totance materials to disseminate to the public.88 provide the centers with status reports on tech- The dissemination of information to 15,000 nical assistance materials.82 public libraries was one of the accomplishments An ADA compliance guide and other educa- that the Department of Justice staff believes was tional materials were sent to mayors of 1,100 me- very successful.89 The effort was initiated in 1993, dium and large cities. The material was includedthrough a grant to the Kansas State Library and with a transmittal letter from the Assistant At-the Chief Officers of State Libraries Agencies torney General for Civil Rights encouraging the(COSLA). There have been three different mail- mayors to use the materials as guidance in meet-ings of ADA information files to the public librar- ing their ADA compliance responsibilities.83 ies since the project was implemented. The mate- A letter and educational material from therials included relevant ADA-related laws and Assistant Attorney General for Civil Rights wereregulations; the Technical Assistance Manual and sent to mayors of the Nation's 250 largest cities, Highlights and Supplements, some of which were notifying them of their responsibility to ensurein Spanish; Question and Answer publications, that their 911 emergency response system effec- several of which were also in Spanish; the ADA tively serves people with disabilities who useenforcement status reports; materials dealing TDDs or computer modems.84 with business and consumers; ADA technical Commonly Asked Questions About the ADAguidance for health care and medical facilities; and Law Enforcement, Questions and Answers:technical assistance information for hotels and The ADA and Hiring Police Officers, and a Civil motels; ADA and child care; technical assistance Rights Act publication were sent to 9,500 lawinformation for other businesses and business- enforcement agencies, with a transmittal letterrelated resources; information on communication from the Acting Assistant Attorney General for access; technical guidance for State and local gov- Civil Rights notifying them of their responsibil- ernments; information on aging issues and dis- ity as Federal grant recipients to comply with ability; design guides; and resource lists and gen- the ADA, section 504 of the Rehabilitation Act, eral information on ADA.90 and title VI of the Civil Rights Act.85 COSLA has also sent out a checklist for li- Some 13,000 technical assistance publications brarians of all of the technical assistance materi- were distributed at ADA town meetings spon- als that should be retained in the ADA files.91 An sored by the National Council on Disability, onsite review was conducted by Commission staff which were conducted in each State to bringof five local libraries in the Washington Metro- businesses and the disability community to-politan area to determine how these materials gether to discuss the ADA.86 were retained and displayed. The results were uneven. In a local community library in Fairfax 80 Ibid., p. 4. 81 Ibid. 87 Ibid. 82 Ibid. 88 Ibid., attachment B, p. 2. 83 Ibid. 89 Lusher December 1997 interview. 84 Ibid. 90 Learn About the ADA in Your Local Library, prepared by 85 Ibid. DRS, CRD, DOJ, attachment F, 1997. 86 Ibid., p. 5. 91 Lusher December 1997 interview. 125

135 BEST COPY AVAILABLE County, Virginia, no ADA technical assistance conjunction with proposed rules published in June materials were available. In the regional library 1994 and November 1995.94 for Fairfax County, the only technical assistance A series of outreach projects was initiated, in information on the ADA available was the Tech- conjunction with the U.S. attorneys' offices, for nical Assistance Manual. None of the updates wassupplying people with materials and sample let- included. The librarian said that the ADA andters to provide ADA information to selected types disability materials were available at a library in of government agencies or businesses within their another part of the county that provided access districts.95 One example of this effort was the dis- services for people with disabilities. At two Mont- tribution of a publication dealing with compliance gomery County, Maryland, libraries, the situationfor emergency response systems at the State and was different. At a local library, the manual was local levels. The U.S. attorneys' offices used the available and some, but not all, of the other ADApublication as part of a two-pronged effort that materials that had been distributed. A nearby included compliance reviews to encourage compli- special needs library had all three ADA informa- ance without the need for litigation. Staff said this tion files and the manual; the material was read- approach had been very effective.96 ily accessible and the staff was familiar with the Material wasdistributedpublicizing the materials. In Washington, D.C., at the main Mar-availability of ADA technical assistance through tin Luther King, Jr., Memorial Library, a specialthe National Conference of State Legislatures to library section deals with persons with disabili- more than 90,000 individuals, including State ties. This collection was the most comprehensive Governors, lieutenant governors, attorneys gen- of all five libraries visited. In each of the libraries,eral, legislators, policy analysts, and other State members of the public also could access the Inter- and local officials.97 net. This would permit them to access and down- Letters were sent to 1,053 small and medium load information on the ADA from the Justice De- cities after a settlement agreement with Los An- partment's ADA home page and other agencies geles on making the 911 emergency response that also had Web sites providing ADA-relatednumber accessible to hearing-impaired callers. information. The COSLA grant for distribution ofIncluded in the mailing were a copy of the settle- materials to the 15,000 public libraries has ex-ment agreement and a title II action guide funded pired, and DRS staff does not plan to renew it. Inthrough a Department of Education grant. the opinion of DRS staff, the program has served DOJ participated as an exhibitor at 30 na- its purpose of successful dissemination of ADAtional conferences, with staff providing onsite materials to a wide audience.92 technical assistance to conference attendees, answering questions and providing informational Specific Title II Technical Assistance and materials on the ADA.98 Outreach Efforts DOJ staff participated as presenters, answered The Disability Rights Section staff, throughquestions and disseminated materials at state- the technical assistance program, has worked towide conferences and meetings to establish net- establish an effective outreach program to iden-works of State and local governments to improve tify, inform, and work with those affected by titleADA compliance efforts. This is an example of a II of the ADA. According to DOJ's statistics, title more recent effort by DOJ to target technical as- II affects 80,000 State and local government en- sistance to specific audiences.99 tities and 49 million persons with disabilities.93 Through a grant to the U.S. Conference of The following are examples of efforts to reachMayors, a Directory of Local ADA Officials was out to targeted groups on the ADA: Outreach was conducted to targeted audiences 94 Ibid. to inform them of rulemaking and the opportunity 95 Ibid. to participate by providing comments to DOJ, in 96 Lusher December 1997 interview. 97 DOJ ADA Technical Assistance Program, attachment B, 92 Lusher March 1998 interview. p. 6. 93 DOJ ADA Technical Assistance Program, attachment B, 98 Ibid. 13- 5- 99 Lusher December 1997 interview.

126 136 developed. The 47-page pamphlet provided awith DRS. DRS staff responded witha paper resource list of ADA coordinators around thethat described DOJ's outreach to minority and country.'°° According to the representative of the rural communities.106 The paper described a U.S. Conference of Mayors, this was a very wide variety of efforts to reach out to potentially popular publication that is still requested, butunderserved groups. These activities included unfortunately it is now out of print. The repre- the following: sentative recommended updating it and making The ADA information line is available in a new distribution to cities.101 Spanish. A 75-page booklet, Implementing the Ameri- Several ADA publications developed by DOJ cans with Disabilities Act: Case Studies of Exem- and its grantees have been translated into other plary Local Programs, was distributed. It summa- languages for minority populations. The lan- rized efforts being made by cities around the guages include: Arabic, Armenian, Chinese, Dine country to comply with the ADA.102 This was also (Navajo), Hindi, Khmer (Cambodian), Korean, very well received by municipal officials, but like Russian, Spanish, Tagalog, and Vietnamese.'°7 the resource list, this booklet is out of print de- The publication, The Americans with Disabilities spite the continuing need for the information.103 Act Questions and Answers, a 32-page booklet jointly produced by DOJ and EEOC, provides an Technical Assistance and Outreach to overview of the ADA's requirements, is available Minority and Rural Communities inSpanish, Korean,Tagalog, and soon in At a November 4, 1997, quarterly meeting ofFrench, Chinese and Vietnamese.'°8 the National Council on Disability, some mem- Two publications produced under a grant to bers expressed concerns about the level of effortthe California Foundation on Employment and and effectiveness of the Department of Justice's Disability, Inc., were prepared in 11 other lan- ADA outreach program to minorities and people guages: Doing Business in Compliance with the living in rural areas.104 A council member whoAmericans with Disabilities Act of 1990, a 28- raised her concern about the outreach efforts topage booklet with information for small busi- more isolated communities said in an interview nesses about the requirements of the ADA; and that she believed few complaints had been filed Entitlement to Access, a 24-page booklet with by minorities with disabilities. She attributedinformation for consumers about the require- this to the possibility that they were not aware ments of the ADA.109 of their rights under the ADA.105 The Civil Rights Division also has participated These concerns about technical assistance ef- in conferences and events designed to reach out to forts to people with disabilities in minority andorganizations that represent minority interests. rural communities, as expressed by several These include: the White House Initiative on His- members in attendance at the National Council torically Black Colleges and Universities; Black on Disability's quarterly meeting, were raised Deaf Association; Blacks in Government; Center for Urban Systems and Technology; Disabled in Action/Atlanta; District of Columbia Partnership 100 Technical Assistance Materials Produced by Department for Assistive Technology; National Council of La of Justice Grantees That Apply to Title II of the ADA, attachment D, 1997. Raza; League of United Latin American Citizens; 101 Laura Waxman, Assistant Executive Director, Criminal National Association for the Advancement of Col- and Social Justice, Department of Health and Human Serv- ored People (NAACP); National Association of ices, U.S. Conference of Mayors, telephone interview, Jan. Black Journalists; National Association of Black 23, 1998 (hereafter cited as Waxman interview). Meeting Planners; National Rehabilitative Initia- 102 Technical Assistance Materials Produced by Department of Justice Grantees That Apply to Title II of the ADA, At- tachment D, 1997. 106 DOJ, ADA Outreach and Service to Minority and Rural 103 Waxman interview. Communities, December 1997. I" National Council on Disability meeting in Washington, 107 Ibid. DC, Nov. 4, 1997, summary. 108 DOJ, ADA Materials in Spanish and Other Languages, 105 Audrey McCrimmon, Illinois Department of Human December 1997. Services, telephone interview, Dec. 1, 1997. 109 Ibid. 127

137 BEST COPY AVAILABLE tive; National Urban League; Organization of A 1997 article was published in Parade Chinese Americans; and the Southern ChristianMagazine on the ADA information line and how Leadership Conference."° The Division had anto obtain A Guide for Small Businesses and A exhibit at these conferences and staff was avail- Guide to Disability Rights Laws and reached 80 able to respond to questions from participants. million re aders.116 The DOJ staff has also made presentations on Every 3 months, the DRS holds a teleconfer- ADA to several organizations that represent mi-ence with centers for independent living to dis- nority interests.'" cuss a wide variety of topics, such as complaint The DRS recently has made an effort to reachfiling procedures, types of cases the Section is out to Native American groups. In 1997, a letterpursuing, the ADA mediation program, and other was sent to over 500 Native American tribalitems of interest. The centers are provided with government offices enclosing ADA technical as-copies of the quarterly status reports and other sistance materials, inviting them to become ADA publications. Some of the centers are designed information access points and providing infor-specifically to serve rural communities and others mation on how to get additional materials. Theserve primarily minority communities. The cen- letter invited the tribal governments to contactters also serve as a good source of feedback for DRS with their concerns about the ADA. Staffofficials involved in ADA implementation.117 has attended conferences and made presenta- Two ADA information dissemination efforts tions at the Federal Bar Association's Indianmentioned earlier also reached very diverse and Law Conference and the National Congress oflarge segments of the population. These included American Indians.112 several mass mailings through the IRS business The Civil Rights Division also participates inmailing, which reaches 6 million businesses; and the cultural diversity initiative sponsored by the the ADA pamphlet and card for ordering free President's Committee on the Employment ofinformation, which was placed in 7,600 grocery People with Disabilities (PCEPD). Under thisstores nationwide that serve an estimated 120 initiative, PECPD works with the NAACP, Na- million shoppers weekly.118 tional Urban League, Aspira, and other organi- Through the ADA technical assistance grant zations to design and implement unique ways to program, the staff has worked with trade asso- disseminate information about disability rightsciations and others to develop ADA materials to underserved communities, provide leadership and projects tailored to meet the needs of spe- training for disability leaders from minoritycific constituencies. These have included owners communities, and sponsors a cultural diversityand managers of hotels and motels, restaurants, symposium at PECPD's annual conference.113 grocery stores, and small businesses; builders The staff has used mass media to reach un-and contractors; students and professors of de- derserved communities. This includes PSAs,sign education programs; historic preservation which were distributed to a large number ofboards and commissions; medical professionals, television and radio stations throughout the Na- child care and older persons service providers; tion.114 The distribution of the ADA technical mayors of medium and large cities; small towns assistance materials to 15,000 public librariesand townships; police officers; court personnel; nationwide also was an attempt to reach a geo- persons with disabilities; and community and graphically dispersed audience.115 professional mediators. Under the recent State- based grant program, DRS staff is working with State-based organizations to help State and local 110DOJ, ADA Outreach and Service to Minority and Rural government officials and small business owners Communities, December 1997. at the grassroots level become aware of the 111 Ibid. 112Ibid.

113Ibid. 116DOJ, ADA Outreach and Service to Minority and Rural 114Ibid. Communities, December 1997. 117Ibid. 115DOJ ADA Technical Assistance Program, attachment B, p. 4. 118Ibid. 128

1.38 ADA's requirements and the resources availablereaching large segments of the population. The to assist them in complying.119 director of the Research and Training Center did In recent years, grant applicants have beennote that there needed to be more diversity in required to describe their plan for reaching di- the people who appear in the informational and verse segments of the population. DRS now re- educational videos that have been prepared by quires that applicants provide evidence that theirDOJ on the ADA. One group that has not been outreach and publicity efforts will reach potentialtargeted for technical assistance materials, she participants from all geographic locations of thesaid, is people with low reading skills, and many target area (nationwide or statewide), from bothof the educational materials are beyond their urban and rural areas, and from minority com-ability to comprehend.124 DREDF was funded to munities.120 Initially this was not a specific re- work with The Arc to develop a simplified expla- quirement for grant aPplicants.121 nation of the ADA. It was later used by The Arc DRS staff are also participating in a task to train adults with mental retardation. The Arc force of the President's Committee on Employ-has developed additional materials for audiences ment of People with Disabilities which is tryingthat have difficulty in comprehension under sev- to reach out to the disabled minority communityeral DOJ grants.125 through dissemination of technical assistance An employment advisor who focuses on mi- materials.122 In the last few years, DOJ hasnority and cultural diversity issues at the Presi- placed greater emphasis in its technical assis-dent's Committee said that both the Department tance efforts on reaching out to persons withof Justice and EEOC had made a concentrated disabilities in underserved communities. effort to reach out to members of minority Several persons representing minority groups groups in their ADA technical assistance pro- were interviewed to get their views on how effec- grams. Although there had been significant pro- tive DOJ had been in its outreach to thesegress in outreach to the minorities with disabili- groups. The director of the Research and Train-ties, he said there was a need for improvement. ing Center for Access to Rehabilitation and Eco-Specifically, he noted that many of the informa- nomic Opportunity at Howard University, who is tional materials such as videos do not feature a member of the President's Committee, had told members of the disabled minority community or the Commission in May 1994 that she advocatedminorities in other roles.126 dissemination of information on ADA in many The assistant director, Department of Affili- different languages and formats, and throughate Development, National Urban League, is grassroots organizations such as churches andalso a member of the President's Committee. In community-based organizations. She said thathis opinion, the technical assistance materials these special outreach efforts were needed in theprepared by DOJ and EEOC were of good qual- minority community to educate them about theity. At the National Urban League, he said they protections of the ADA.123 In a November 1997had found the affiliates that had staff members interview, she said that many of her concernswith disabilities were more involved in outreach about reaching out to the minority communityto the disabled minority community. Further, had been addressed and that for the most partthese affiliates had found that it was more effec- the Department of Justice had done a fairly goodtive to refer a disabled minority person who was job in disseminating information on the ADA toseeking information to a local community advo- all groups. She specifically cited the PSAs recorded by Attorney General Reno and the toll- 124 Sylvia Walker, Vice Chairperson, President's Committee freeinformation lineas beingeffectivein on the Employment of People with Disabilities, and Direc- tor, Research and Training Center for Access to Rehabilita- tion and Economic Opportunity, Howard University, tele- 113 Ibid. phone interview, Nov. 19, 1997. 120 Ibid. 125 DOJ Comments, July 24, 1998, p.11. 121 Lusher December 1997 interview. 126 Claudie Grant, Employment Advisor, Office of Plans, 122 Ibid. Projects, and Services, President's Committee on Employ- 123 USCCR, Executive Summary, Briefing on the Americans ment of Persons with Disabilities, telephone interview, Nov. with Disabilities Act, May 6, 1994, p. 2. 19-20, 1997.

129 139 cacy group for technical assistance than to asaid the Internet is used effectively but the Web Federal agency. In 1997, the National Urban site could have more timely information.131 Re- League organized a national clearinghouse for gion V staff stated that DOJ had developed sev- technical assistance on disability issues.127 eral quality technical assistance materials, but Several other organizations representing the supplies have been depleted or copyrights on the minority community were contacted. Some, like materials make it difficult to reproduce the pub- the NAACP and the National Council of La lications.132 The Region VIII DBTAC staff said Raza, indicated that they had not conducted any that DOJ had been a bottleneck in gaining ap- evaluation of the effectiveness of DOJ's or proval or creating new guidance materials. They EEOC's ADA technical assistance program's out- specifically noted that there needed to be more reach efforts to the minority community. Laattention given to technical assistance materials Raza suggested that the National Center for La-for title II entities. The Region X staff noted tinos with Disabilities in Chicago, Illinois, besome of the same problems with copyrights and contacted. The executive director said the or- costs associated with some of the technical assis- ganization focuses solely on the disabled His- tance materials produced under DOJ grants, but panic community. She said that she had not seensaid that the technical assistance "materials any technical assistance materials prepared byproduced by DOJ staff have been uniformly ex- DOJ or EEOC. She noted that it would be help-cellent."133 Furthermore, other comments re- ful to get technical assistance and educationalceived by the Commission indicate that DOJ's materials on the ADA in Spanish.128 Since DOJADA technical assistance has been "excellent prepares many of its technical assistance mate-with inadequate funding and staffing"134 and the rials in Spanish, the problem must be in the dis- technical assistance materials provided by DOJ semination efforts. have been "very helpful."135 One disability pro- Generally, the comments received in inter-fessional wrote that "we have had technicians at views and meetings about DOJ's ADA technicalDOJ go the extra mile and get a legal opinion or assistance efforts have been positive. For exam-interpretations which is always invaluable and ple, at a meeting of the National Institute onvery much appreciated. Overall we would say Disability and Rehabilitation Research's ADAthat the experiences with the technical assis- technical assistance program project directors ontance staff on the help line at DOJ has been very March 2, 1998, one of the project directors con- positive."138 Most of the comments the Commis- gratulated the head of DOJ's ADA technical as-sion received about DOJ's technical assistance sistance program on the effort and noted thathotline were positive, but several disability pro- she had no complaints. This statement wasfessionals indicated that it was difficult to get greeted with widespread applause.129 Region Ithrough on the line.137 One disability profes- DBTAC staff said that the DOJ enforcement status reports were extremely helpful as was the 131 Ibid. ADA Web site.139 The Region III DBTAC staff 132 Ibid. 133 Ibid. 127 Robert Walters, Assistant Director, Department of Affili- ate Development, National Urban League, Inc., telephone 134 Carl Brown, Assistant Commissioner, Division of Reha- interview, Jan. 15, 1998. bilitation Services, State of Tennessee Department of Hu- man Services, letter to Frederick D. Is ler, Assistant Staff 128 Maria Elena Rodriguez-Sullivan, Executive Director, Director, OCRE, USCCR, Apr. 20, 1998, attachment, p. 1. National Center for Latinos with Disabilities, telephone interview, Nov., 1997. 138 Joyce R. Ringer, Executive Director, Georgia Advocacy Office, letter to Frederick D. Is ler, Assistant Staff Director, 128 National Institute on Disability Rehabilitation Research, OCRE, USCCR, Apr. 1, 1998, enclosure, p. 4. ADA Technical AssistanceProgramProjectDirectors' Meeting in Arlington, VA, Feb. 24-25, 1998, summary. 138 Michelle Martin, Staff Services Analyst, Department of Rehabilitation, State of California Health and Welfare Agency, 130 Responses by National Institute on Disability and Reha- letter to Nadja Zalokar, Director, Americans with Disabilities bilitation Research Americans with Disabilities Act Techni- Act Project, USCCR, May 11, 1998, enclosure, p. 13. cal Assistance Program grantees related to DOJ/EEOC En- forcement, Jan. 6, 1998, provided to the Commission by 137 Kayla A. Bower, Executive Director, Oklahoma Disability David Esquith, National Institute on Disability and Reha- Law Center, letter to Frederick D. Isler, Assistant Staff bilitation Research (OCRE files), p. 3. Director, OCRE, USCCR, Apr. 6, 1998, enclosure, p. 3; Amy

130

140 sional wrote that although the technical assis- Over the next 5 years, DOJ expects to con- tance materials produced by DOJ are very help-tinue building on its basic servicesthe ADA ful and "DOJ and EEOC have done a good job at information line, ADA home page, ADA speakers disseminating materials todisability groups,bureau, and the development and dissemination ...there still seems to be a need to reach local of new publications. This will include additional public entities who are still in need of a great design guides, ADA technical assistance plans, deal of assistance."138 Commonly Asked Questions, and publications similar to the ADA guide for small businesses, Future ADA Technical Assistance Efforts the next of which will be targeted to small towns DOJ's commitment to the ADA technical as-and townships. The Department will expand its sistance program remains strong as evidenced efforts to educate people at the local level, espe- by its fiscal year 1999 appropriation request tocially minority and rural populations. DOJ will make permanent the 10 term positions that pro-undertake new initiatives to educate the public vide support to the information line and theabout the new standards the Department will clearinghouse function.139 This will permit DOJ adopt for children's facilities, legislative and ju- to attract and retain skilled staff for this impor- dicial facilities, and penal facilities, and the tant technical assistance and outreach pro-completely revised ADA standards that will be gram.140 The approach to providing technical adopted after the Access Board completes its re- assistance is evolving. As previously discussed, visions of the ADA guidelines in 1999.143 DOJ plans to focus on more user-friendly publi- The Department also plans to use computer cations in the future. Publications that aretechnology to provide alternative formats for shorter, less technical, and more focused on atechnical assistance materials. CDROMs, with specific topic will be emphasized. There are no ADA regulations, technical assistance documents, plans to issue updates to the Technical Assis-and new illustrated materials, will be developed. tance Manual although some of the informationThe CDROM will permit DOJ to provide mate- dealing with accessibility standards will be re-rial in alternate formats (e.g., text, large print, written in less technical language and then dis-and WordPerfect for Braille) on the same disk as seminated in a brochure.141 the other material. It is anticipated that the first DRS staff plan to rely less on the use of grants CDROM will include all the current title II and to develop technical assistance publications in the title III regulations and technical assistance ma- future. Technical assistance materials will be for terials to the extent feasible. As new multimedia the most part developed inhouse. Staff has com- segments are developed, DOJ will include them piled a list of topics for the development of future on new CDROMs, along with any changes in outreach materials. DRS staff indicated that regulations and the ADA standards.144 technical assistance and outreach are important to Acting Assistant Attorney General for Civil Rights Bill Lann Lee, who wants to use the ADA technical approach for enforcement of other civil rights laws,142 so technical assistance will continue to be an important component of DOJ's efforts to enforce the ADA in the future.

Maes, Director, Client Assistance Program, Michigan Pro- tection and Advocacy Service, letter to Frederick D. Isler, Assistant Staff Director, OCRE, USCCR, Apr. 30, 1998, enclosure, p. 5 (herafter cited as Maes letter). 138 Maes letter, enclosure, p.. 3. 139 Lusher March 1998 interview. 148 Ibid. 141 Ibid. 143 DOJ Answers, Apr. 20, 1998. 142 Ibid. 144 Ibid.

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141 6 Findins and Recommendations

The ADA is the first of a new generation offormation, and for failing to reach certain seg- civil rights laws in which Congress assignedments of the population, such as small and rural Federal agencies not only the duty to enforce,communities. but also to inform all parties of their responsi- Despite limited resources, DRS has made bilities and rights under the law. The U.S. De-valiant efforts to deal with its ADA complaint partment of Justice (DOJ) has been responsibleworkload, with mixed success. Although staff for the implementation and enforcement of title responsible for the ADA grew from 22 in 1992 to II, subtitle A, of the ADA since enactment of the 70 in 1997, between these same years DRS re- act in 1990. To perform its responsibilities underceived more than 10,000 complaints. To meet the act, over the years the Civil Rights Divisionthis intense public demand for assistance on has reallocated staff and restructured itself toADA-related issues, DRS focused its efforts in concentrate expertise into the Disability Rights specific key areas with significant success. To Section (DRS), the section currently and pri-address a backlog in complaints, DRS stream- marily responsible for performing the ADA- lined its investigative activities to improve com- related activities of the Department of Justice. plaints processing. However, DRS officials read- Given its limited resources and extensive re-ily admit that they cannot fulfill the requirement sponsibilities under the ADA, DRS deservesin the title II regulations that DOJ investigate positive recognition for several aspects of itsand attempt to resolve every title II complaint it ADA enforcement to date. Perhaps the greatest receives. Currently, fewer than 15 DRS staff strength of DRS' ADA implementation, compli- members are trained and assigned as investiga- ance, and enforcement efforts is its technical as- tors for ADA complaints received from the entire sistance and outreach and education program,United States. Although it has decreased both which is extremely effective and praised widelyits case backlog and the amount of time cases by agency stakeholders. To apprise covered enti-typically take to resolve, clearly DRS needs addi- ties of their responsibilities and covered indi-tional staff to effectively investigate and enforce viduals of their rights under the ADA, DRS has ADA cases. a toll-free information telephone line and Inter- The Disability Rights Section's use of alterna- net Web site, both of which are used heavily. Intive dispute resolution or mediation techniques addition, DRS has developed numerous user-to resolve complaints of discrimination under friendly technical assistance documents, usuallytitle II is commendable. For many cases, media- in question and answer format, that provide an-tion results in an expedited resolution of the swers to many of the questions that arise undercase to the satisfaction of both parties, without title II, subtitle A, of the ADA. Through this sys- the unnecessary use of DRS resources for inves- tem, DRS has provided valuable information to atigation, negotiation, or litigation. Reliance on significant number of people. Still, DRS has beenmediation, although sometimes criticized by criticized for providing inconsistent information, agency stakeholders, has freed up scarce refor taking too long to respond to requests for in-sources that DRS uses effectively in litigation

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142 and technical assistance and outreach and edu- litigation to develop the law, it is evident that cation activities. However, it is important forstronger leadership and coordination by DOJ is DRS to ensure that it refers the appropriate necessary. cases to mediation and holds in its inventory Another failing of the DRS implementation complaints that are likely to result in improve-program is that it does not develop and publish ments for large numbers of individuals with dis- indepth policy guidance documents to clarify the abilities, either because the respondent's actionsmeaning of the law and explain the reasoning directly affect many individuals with disabilities behind the positions it takes in controversial ar- or because the case raises important issues ofeas. Instead, DRS's policy development is limited law that need to be resolved. to its enforcement and technical assistance ac- Stakeholders have often criticized DOJ for tivities, such as investigation of complaints and mediating or resolving complaints rather thannegotiation of settlement agreements; litigation litigating them to establish case precedent andof complaints; filing of ainicus curiae briefs, and develop the law. DRS officials point out, in their development and dissemination of technical as- defense, that the title II regulations require DOJsistance materials. In addition, although DRS to attempt to negotiate a resolution to everymaintains that its regulations provide suffi- complaint before consideringlitigation.Fur-ciently specific guidance and additional formal thermore, in many issue areas, DOJ cannot liti- policy guidance is unnecessary, disability rights gate a case without a referral from one of theadvocates and other agency officials have indi- other designated Federal ADA agencies, andcated otherwise, that more guidance is needed. these agencies have referred few cases to DOJ,The divergent rulings among Federal courts on despite DRS' interest in cases that it believes are title II issues reinforce the need for DRS to de- important to litigate. Within the confines ofvelop and publish formal title II policy guidance. these constraints, DRS has attempted to litigate Finally, DRS has been criticized frequently in areas that are important and affect largefor setting its own agenda and being unrespon- number of individuals with disabilities. DRS liti-sive to stakeholders' concerns and priorities. For gation has brought about positive changes in instance, many in the disability community have many areas: clarifying curb cuts, ending unnec- faulted DRS for focusing a lot of attention on essary segregation of persons in institutions,accessibility of hotels and stadiums, and less at- ensuring accessibility to anonymous voting fortention on other areas that they believe affect persons with mobility and sight impairments, much larger numbers of individuals with dis- and eliminating improper mental health inquir- abilities. Although DRS has only limited control ies in professional licensing procedures. DRS hasover its own agenda, which depends in large won important court rulings defining what types measure on which complaints are filed with the of disabilities, services, and contexts are covered agency or referred to DOJ by the Federal agen- by, or trigger obligations to comply with, thecies designated to enforce the ADA, its respon- ADA. DRS also has successfully obtained con-siveness to stakeholders could be improved. For sent decrees that have had a major role in clari-instance, the development of formal policy guid- fying ADA coverage. ance would be one area where DRS could set its DRS has not adequately monitored the ADAagenda based on stakeholders' views. In addi- implementation, compliance, and enforcementtion, although DRS has informal contacts with efforts of the seven other designated Federalstakeholders and its Chief is receptive to calls ADA agencies. This is a significant weakness offrom stakeholders, the Section would benefit the DRS ADA program. Because of lack of re-from establishing a formal mechanism for hear- sources, DRS has not assigned staff to that func-ing stakeholder advice and opinion. tion, and interactions between DRS and the Given its available resources, DRS's efforts designated Federal ADA agencies are generallyunder title II of the ADA are highly effective. informal and are usually initiated by the agen-Many of DRS's failings would be overcome if the cies when they need assistance. Given that the office were provided additional resources. The designated agencies have not referred cases toU.S. Attorney General has requested that Con- DOJ in title II areas where it would be impor- gress provide a funding increase of 13.7 percent tant for the Federal Government to engage infor fiscal year 1999 to allow DRS to continue and

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BEST COPY AVAILABLE expand its vigorous enforcement of the ADA. This mediation program, improved monitoring and much-needed increase would represent a soundcoordination of the other designated Federal investment in and renewed commitment to theADA agencies, staff training efforts, and tech- elimination of disability-based discrimination. nological upgrades.

Chapter 2. Overview of Use of Computer Technology for Enforcement of Title II Technical Assistance Budget and Staffing Finding: DRS uses computer technology ef- Finding: DRS has been consistently under-fectively to provide information on title II of the funded and understaffed. This lack of fundingADA and on how to file complaints under the has prohibited the agency from fully realizing itsstatute. Although DRS does not have its own goals and fulfilling its mission. Currently, DRShome page, it is possible to obtain information has a staff of 15 investigators, 23 staff attorneys, about DRS from the home page of the Civil and 6 architects. This is insufficient, particularlyRights Division.2 the small number of investigative staff for the Recommendation: DRS should continue to thousands of ADA complaints DOJ receives each use computer technology creatively to ensure year and in staff for monitoring and coordinationthat stakeholders have access to the necessary of the designated Federal agencies. The Attorney information to vindicate their rights and fulfill General has asked Congress for a 13.7 percenttheir responsibilities under title II of the ADA. increase in funding for fiscal year 1999. This ad-For instance, DRS should develop capability for ditional funding, $1.27 million, would enableany individual with a title II complaint to com- DRS to hire additional attorneys, investigators,municate the complaint to DRS over the Inter- mediators, and architects. These funds havenet. DRS should establish a system that allows been earmarked for the following upgrades: (1)staff to respond to questions from the public $507,000 for four attorneys and four investiga-through e-mail. tors, as well as funds for architects, and others who serve as prelitigation consultants to in-Staff Training crease enforcement efforts; (2) $263,000 in in- Finding: DRS generally has provided its creased funding for two attorneys and three spe-staff with effective training on the ADA. DRS cialists to help other Federal agencies enforcegives staff training high priority, and DRS staff section 504 of the Rehabilitation Act and title IIhas input into the training provided. Although of the ADA; and (3) $500,000 in additionalDRS has a very strong training program for its funding to expand the mediation program. How-investigators,it has provided littletraining, ever, this proposed allocation of funds will notformal or informal, to assist its trial attorneys in sufficiently address the problem. For example, improving their litigation skills.3 the addition of only four investigators will not be Recommendation: DRS should continue to enough for DRS to resolve the many ADA com-provide ongoing on-the-job training to its staff on plaints it receives annually. DRS has maximizedtitle II of the ADA. In addition, however, DRS the effectiveness of its limited resources; there-should ensure that its trial attorneys are afforded fore, Congress should allocate this additionalformal training to enhance their litigation skills. funding for the agency. In fact, the Commission finds that a 13.7 percent increase is insufficientDepartment of Justice's Strategic Planning to address its problems in resolving complaints Finding: The DOJ strategic plan for 1997- in a more timely, efficient manner.' 2002 guides its budget and sets forth its mission, Recommendation: The Commission em-long range goals, strategies for meeting goals, phatically supports the Attorney General's re-and indicators to measure performance. DOJ's quest for additional funding. However, the At-strategic plan includes a summary of resources, torney General should request (and Congresssystems, and processes that are critical to goal should appropriate) more funds for additional achievement and a somewhat brief description of investigative and legal staff, expansion of the

2Seechap. 2, p. 13.

ISeechap. 2, pp. 11-13. 3Seechap. 2, pp. 13-14. 134

4,4 how its goals and objectives will be achieved. The lack of monitoring, coordination, and Although the plan mentions ensuring the civilcommunication has hindered effective title II rights of people with disabilities as one of its pri- enforcement in a number of ways. First, the orities with respect to its goal of protecting civil designated agencies have referred few title II rights of all Americans, the plan does not include cases to DOJ for litigation. Under title II, DRS specific goals and strategies for this priority ordoes not have independent authority to handle make specific reference to the ADA.4 cases that fall to the designated agencies; it can Recommendation: The Commission com-do so only by referral. However, the agencies mends DOJ for making civil rights of personshave not referred many cases to DRS.5 Ex- with disabilities one of its top priorities in itspanded communication between the respective strategic plan. However, DOJ should include inenforcementstaffscouldfosterinformation its future strategic plans specific strategies andsharing and facilitate referral of cases. Second, goals to protect the civil rights of people withthe lack of communication between DRS and the disabilities. For example, at a minimum theotherdesignatedagencies may mean that plans should mention the statutes or other Fed- building accessibility complaints are not being eral laws that protect these civil rights, in thisaddressed adequately. Many accessibility com- case, the ADA. In addition, the plans shouldplaints fall under the jurisdiction of the desig- specify what the current problems are for the nated agencies, which have rarely contacted disability community and the mechanisms DOJDRS staff for advice or assistance. will develop to address them. Also, performance The Attorney General has asked Congress for indicators should include outcomes of ADA dis- funds to increase or improve coordination activi- crimination complaints, resolutions, mediation,ties, specifically, for two attorneys and three and investigations and litigation. specialists to fulfill DOJ's coordination responsibilities to other Federal agencies as they enforce Coordinating and Monitoring Federal title II of the ADA.6 Agencies' Title IE Enforcement Efforts Recommendation: Astheleadagency Finding: DRS makes only minimal efforts tocharged with enforcing title II, subtitle A, of the fulfill its responsibility to coordinate and moni-ADA, DRS should provide more leadership and tor the ADA implementation, compliance, and guidance to and develop enhanced communica- enforcement efforts of the other designated Fed- tions and information sharing with the Federal eral ADA agencies. Communication between agencies designated to enforce the ADA. The DRS and the designated agencies takes place onDRS Chief should hold regular, biennial meet- an informal, ad hoc basis. To date, DOJ has notings with responsible officials in the designated entered into memoranda of understanding with agencies to ensure that they are well informed of any of the designated agencies or issued guide- the ADA enforcement issues DRS has identified lines on coordination. DOJ does not adequatelyand to exchange information about what the track the cases it refers to the other designatedagencies are doing to enforce the ADA. DRS agencies. For instance, DRS does not require the should enter into memoranda of understanding designated agencies to provide feedback on theor issue guidelines on coordination with the referred cases until after they are closed, anddesignated agencies. DRS should track title II only a small percentage of the cases has beencomplaints it refers to the designated agencies closed. Furthermore, DOJ has no mechanism in as well as complaints filed directly with those place for tracking ADA complaints that are re- agencies. DRS should require the designated ceived directly by other Federal agencies. DRS agencies to provide a quarterly status report on has not done even minimal monitoring of theall title II complaints in their inventories. In ad- other designated ADA agencies. According todition, this status report should contain budget DRS, monitoring and evaluating the designatedand staffing information about the agency's ADA agencies' resources devoted to ADA enforcementoperation. Finally, Congress should appropriate efforts is difficult, because these agencies do not maintain separate budgets for this statute.

5Seechap. 2, pp. 19-22. 4Seechap. 2, pp. 16-17. 6Seechap. 2, pp. 12-13.

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145 the funds requested by the Attorney General to investigation process. However, since alternative improve DRS coordination activities. dispute resolution is a central component of the Department'stitleIIcomplaintsprocess, Investigations DOJ/DRS should issue policies and procedures Finding: The title II regulations state thatfor alternative dispute resolution as expedi- DOJ must investigate and attempt to resolve tiously as possible. every complaint it receives. DOJofficials acknowledge that they cannot investigate everyLitigation complaint. The Attorney General's requested Finding: Although DOJ' is authorized, under budget increase, which includes four additionalthe title II regulations, to initiate litigation that investigators, will not be sufficient to addressarises from its own investigations and upon re- the lack of investigative staff.? ferral from the seven designated Federal agen- Recommendation: The Attorney General cies, some members of the disability community should request additional funds to reflect thehave criticized DRS for litigating too seldom and need for more investigators. Specifically, DRSmediating too often. These critics generally beshould estimate the number of incoming andlieve that DRS should direct more resources to- pending cases and request funds to increase in-ward establishing legal precedent that will be vestigative staff accordingly. binding on parties in subsequent cases.9 Recommendation: DRS should develop a Alternate Dispute Resolution/ balanced enforcement strategy to ensure that Mediation Process cases that are important fordeveloping legal Finding: A primary emphasis of DRS' title IIprecedent are litigated, while others are medi- complaints process, as required by the title II ated. Furthermore, DRS should seek input from regulations,is resolving discrimination com-stakeholders in developing this strategy, inplaints by voluntary means rather than litiga- cluding their views on which areas and issues tion. DRS is innovative in using alternative dis- need to be litigated. DRS also should make ef- pute resolution (ADR) techniques, such as me- forts to inform stakeholders about its enforce- diation, to resolve complaints voluntarily, andment strategy and the rationale behind it. DOJ's 1997-2002 Strategic Plan emphasizes the Department's intention to use alternative dis- Finding: Although DRS has written amicus pute resolution where appropriate to avoid liti-briefs and has intervened as a colitigant in pre- gation. Mediation has the advantage of resolvingexisting private litigation, a review of DRS' quar- complaints quickly to the satisfaction of bothterly status reports shows that DOJ has initiated parties, with considerably less expenditure oflitigation against public entities under title II in scarce resources than litigation.DOJ provides only three cases. One reason for this is that State complainants with a brochure that explains the and local governments tend to comply with title II ADR process. Although some parties decline thevoluntarily before DRS seeks approval to litigate. option of alternative dispute resolution, manyAnother reason is that designated agencies have titleII claims of discrimination are resolved not referred title II cases to DOJ.b0 through these informal methods. During 1998, Recommendation: DRS should be more ag- DRS expects to develop policies and proceduresgressive in initiating litigation against public for alternative dispute resolution.8 entities (State and local governments) under ti- Recommendation: The Commission com-tle II, particularly in cases such as accessibility mends DRS for its innovative use of alternativein courthouses and other public buildings. DRS dispute resolution. In addition, DRS should con- should improve its coordination of and commu- tinue to provide user-friendly informational bro-nication with the Federal designated ADA agen- chures to inform parties to a complaint aboutcies so they will refer meritorious cases, par- alternative dispute resolution techniques andticularly those on provision of integrated set- how they differ from the traditional complaints tings in public healthcare, to DOJ for litigation.

7 See chap. 2, p. 13. 9 See chap. 2, p. 29. 8 See chap. 2, pp. 26-28. 10 See chap. 2, p. 30. 136

146 Analysis of Complaint Processing Data to and act in an informal advisory capacity to the Finding: DRS does not have the same data- Equal Employment Opportunity Commission base capability as the U.S. Equal Employment than to the Department of Justice.12 Opportunity Commission. Its database system, Recommendation: DRS should establish a CMS, is outdated and runs on software that only mechanism through which its stakeholders and allows DRS to generate "canned" or preset re-members of the general public can offer com- ports. The database cannot be used for trendment on proposed ADA policy and its litigation analysis. Furthermore, DRS' complaints data-strategy. Specifically, DRS should provide an base appears to contain numerous errors. Some opportunity for public input on both the re- of the variables listed in the dataset do not con-sources DRS dedicates to litigation and the is- tain values. In some instances, nearly three-sues it litigates. In addition, DRS should issue fourths of the complaints have data fields thatformal policy documents developed through a are empty." process that allows public comment. DRS also Recommendation: DRS should develop anshould explore the possibility of establishing a up-to-date database system that enables it toformal advisory board representative of persons track complaints and do trend analyses. In addi- with disabilities and other stakeholders to pro- tion, DRS should implement a quality control vide input to DRS staff as to which cases to liti- system to ensure that the data entered into the gate. Finally, DRS should be more aggressive in database are complete and accurate. DRS alsoits policy implementation and litigation activi- should encourage the designated Federal ADA ties under title II. For example, DRS should is- agencies to use the same database system for sue policy guidance and conduct more litigation their ADA complaints, so that a uniform systemrelated to people with mental disabilities. DRS exists for all ADA complaints. should file more ainicus briefs in cases involving mental disabilities. Chapter 3. Assessment of Title II Enforcement and Policy Development Enforcement of ADA Policy Development Administrative Requirements Finding: DOJ/DRS develops ADA policy Finding: DOJ issued regulations to imple- primarily through its technical assistance and ment title II, subtitle A, of the ADA that set forth enforcement activities, such as litigation and specific administrative procedures public entities amicus briefs. DRS then disseminates this policymust follow to comply with title II. These admin- in the form of technical assistance that is in aistrative requirements include providing notice to format the general public can understand morethe public to ensure that persons with disabilities easily. These methods of developing policy do notare aware of their rights, conducting a self- provide an opportunity for disability advocacyevaluation of current policies and practices, es- groups to participate in the policy developmenttablishing transition plans to comply with the process, whereas if formal guidance documentsADA, and establishing ADA contact persons and were drafted and published, the public could of- grievance procedures. However, it is evident that fer comment. many towns and municipalities, particularly Disability rights advocates who question thesmall, rural governments, have not taken any ac- efficacy of the DRS ADA litigation program point tion to comply with the ADA. For instance, courts to (1) DRS litigation activities that do not ade-in one State have not established ADA grievance quately respond to issues faced by persons withprocedures and major State agencies have not disabilities, such as insurance concerns; (2) no designated the ADA coordinators or contact per- DRS role, as litigant or ainicus, in cases involv- sons required by title II.13 ing mental illness; and (3) little activity on is- Recommendation: DRS should make avail- sues relating to individuals with mental disabili-able sample transition and self-evaluation plans ties. (DOJ has filed only one amicus brief on ato provide guidance to State and local govern- case involving mental disability.) Finally, advo- ments on their responsibilities under titleII. cacy groups contend that they have more access 12 See chap. 3, pp. 39-40. 11 See chap. 2, pp. 30-31. 13 See chap. 3, pp. 40-42.

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147 DRS also should undertake other steps to im-be liable when compliance is not met, because prove its enforcement of title II's administrativeowners often do not allow them to design acces- requirements. For example, DRS should promote sible buildings and take their business elsewhere uniform policies and procedures for State courts if architects do not follow their instructions.15 by participating more actively in judicial confer- Recommendation: DRS should communi- ences conducted by State supreme courts. Tocate clearly its position that architects are re- ensure that more public entities designate ADAsponsible for designing buildings that are acces- coordinators, DRS should require local entitiessible to persons with disabilities and in compli- to report annually the names of their ADA coor- ance with the ADA. In addition, DRS should con- dinators to the State ADA coordinator. DRStinue its ongoing outreach and technical assis- should verify that State and local governmentstance activities, such as the production and dis- have designated ADA coordinators, perhaps semination of written technical assistance mate- through collaboration with the Protection andrials and speeches, workshops, conferences, and Advocacy System. other public media. DRS also should work with academic institutions, such as schools of archi- Accessibility tecture, to ensure that ADA requirements are Program Access included in their curricula. Finding: One of the major technical assistance ADA challenges DRS faces under title II is Effective Communication that many public entities do not understand Finding: DRS has not provided clear and program accessibility, even though the concept comprehensive guidelines for effective communi- has existed since the enactment of section 504 ofcation requirements under title II of the ADA. the Rehabilitation Act of 1973. To address thisSome State and local courts have refused to pro- lack of knowledge about program accessibility, vide sign language interpreters for persons with DRS has developed a grant for small towns andhearing impairments, or have charged fees for another grant for title II entities. DRS also plansinterpreters' services. Part of the reason for this to produce a document for small towns that ismay be lack of understanding of ADA require- similar to the ADA guide for small businesses, toments among public entity officials. It also may help small towns become aware of DRS andbe due to public entities' failure to designate other resources. However, at least one represen-and/or support ADA coordinators.16 tative of small towns has criticized the draft Recommendation: DRS should adopt a document as too legalistic to be useful.14 three-pronged approach to addressing State and Recommendation: DRS should produce andlocal government agencies' failure to provide ef- disseminate a guide targeted to educating localfective communication to individuals with dis- government officials about their responsibilitiesabilities. First, DRS should develop policy guid- under title II of the ADA. This effort should beance and do more litigation in this area. Second, coordinated with DRS' efforts to verify that State DRS should continue to develop and disseminate and local governments have designated ADAoutreach and education materials for local gov- coordinators. All guides and other technical as-ernment entities to inform them of their respon- sistance information should be sent directly, to sibilities under the ADA. Finally, public entities ADA coordinators. should ensure that ADA coordinators are in place and educated about their role.

Architectural Access 1 Finding: DOJ has taken the position that, Finding:Although DRS investigatesa becausearchitectsdraw plansanddesign higher percentage of the title II complaints re- buildings, they are responsible for ensuring thatlating to effective communication than of the their designs comply with the ADA. In thetitle III complaints in this area submitted to building industry, the view is not so clearcut onDOJ, DRS has not been as active in initiating accountability. Many architects apparently be-litigation on title II issues. Furthermore, at least lieve that building owners, not architects, should 15 See chap. 3, pp. 45-46. 14 See chap. 3, p. 45; see also chap. 2, p. 22. 16 See chap 3, pp. 53-54. 138

148 one disability advocate wrote thatDRShas been Recommendation: Through technical assis- responsive in providing assistance to disabilitytance and policy materials,DOJshould explain rights advocates in title III cases, but has notmore clearly the relationship between titles I been as active in title II cases.DRSparticipation and II in public employment.DOJshould ex- in title III cases has led to quick compliance byplain under which circumstances a public em- commercial entities. Similar Federal attention inployee would appropriately file a claim under title II cases likely would reduce instances oftitle I and under which circumstances the claim noncompliance.17 would be filed more appropriately under title II. Recommendation:DRSshould be more ag-For instance,DOJcould provide examples of gressive in initiating title II lawsuits, particu-scenarios in its technical assistance materials. larly sinceDOJis the only Federal agency authorized to litigate against State and local Finding: Employment discrimination under government entities.DRSshould involve itselftitle II is a very important area ofADAlaw and more fully through litigation and policy guidance policy, in large part because so many people in shaping the development of title II law. work for State or local governments and the many facilities and services they provide.DOJ Public Employment has included public employment in its title II Finding:DOJhas taken the position that ti- regulations, it has issued guidance in the form of tle II of theADAapplies to public employmentpolicy letters and technical assistance, and it has and specifically included a provision on employ- filed a few amicus briefs. However,DOJhas not ment in its title II regulation.DRSalso has pro-issued a formal policy guidance that would bene- duced technical assistance materials and par-fit legal, investigative, and administrative staff ticipated in litigation to support this position. inDRS.Furthermore,DOJhas not taken an ac- Several courts have held title II does cover pub- tive role in litigation on this issue.20 lic employment issues despite the fact that the Recommendation:Astheonly Federal ADAstatute itself does not mention employmentagency authorized to litigate employment cases under title II.18 The Commission supportsDOJ's against State and local government entities, position and recognizes the need for clear resolu- DOJshould play a more active role in litigating tion of this issue. public employment cases under titleII.DRS Recommendation:DRSshould participateshould disseminate policy developed through in judicial training conferences throughout thesuch litigation to the general public in the form United States to educate judges regarding theof outreach and education materials. Coordina- applicability of title II to public employment. tion of EEOC andDOJactivities should be en- This participation should include formal speak-hanced by creating more interaction between ing presentations and the dissemination of writ-DRSenforcement staff and EEOC investigators ten materials.DRSshould select cases to litigate and attorneys. For example,DRSattorneys, and establish caselaw in this area that courtswhose expertise is mainly in disability law, could will be bound to follow. learn about employment law issues from EEOC attorneys. Because this is such an important Finding:DOJhas not provided clear guid-area,DRSshould incorporate an employment ance on the relationship between titles I and II law component into its training program. in public employment. Both title I, the employment provisions, and title II, public entity provi-Chapter 4. Title U Policy and sions, apply to employees of public entities.Enforcement in Specific Contexts However, keyDOJtechnical assistance materi- Law Enforcement and Emergency Services als do not explain clearly when public entity em- Finding:DOJhas addressed carefully many ployees' complaints should be filed under title Iimportant issues regarding the treatment of in- or title II.19 dividuals with disabilities by law enforcement and emergency services personnel.DOJhas 11 See chap. 3, p. 56. done this through its regulations, arnicus briefs, 18 See chap. 3, pp. 59-61. 19 See chap. 3, pp. 60-61. 20 See chap. 3, pp. 59-61.

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149 policy letters, and technical assistance materials.DOJ should provide these materials to policy DOJ and its grantees have provided many tech-makers and administrators in law enforcement nical assistance materials, such as brochures,and emergency services agencies. Furthermore, pamphlets, and short videos. Although these DOJ should play a more active role in litigating documents are helpful to front-line law enforce-cases involving law enforcement and emergency ment officers and emergency services personnel,services personnel who have experienced em- law enforcement and emergency services policyployment discrimination based on disability. makers and administrators should be provided with more comprehensive policy guidance onPrisons title II law enforcement issues.21 Finding: Inmates with disabilities often suf- Recommendation: DRS shouldissuea fer from disability-based discrimination and op- comprehensive policy guidance on title II issues pression and generally do not have equal access for law enforcement and emergency services.to correctional institutions' physical structures This document should review relevant caselawor to rehabilitative, educational, and work pro- and synthesize the information already providedgrams offered other inmates. Many prisons are in the diverse documents DRS has issued on this not designed to be accessible to individuals with topic. This document should be distributed tophysical disabilities. Qualified inmates with dis- public entity ADA coordinators and law en-abilities often are excluded from prison pro- forcement and emergency services agency ad-grams that might gain them earlier release or ministrators. enhance their chances of surviving on the outside after their release, because officials in cor- Finding: DOJ has not sufficiently addressedrectional institutions do not provide reasonable law enforcement and emergency services em-accommodations as required by the ADA.23 ployment issues. One such issue is alcoholism Recommendation: DRS shouldensure, among law enforcement and emergency services through vigorous enforcement of title II of the personnel. DOJ has not provided guidance to lawADA as well as targeted technical assistance, enforcement and emergency services agencies tooutreach, and education, that inmates with dis- better inform them of hiring and personnel poli-abilities are provided equal access in correctional cies and contribute to an alleviation of discrimi-institutions' physical structures and to programs nation against employees. for prisoners and are not subject to violence or Furthermore, DOJ has not adequately ad- discrimination based on their disabilities. dressed the question of reasonable accommoda- DRS should provide technical assistance and tion. Public entities have not made much prog-training to officials and staff of State and local ress in adapting working conditions for indi-correctional institutions to ensure that they viduals with disabilities who are qualified toknow their responsibility to provide reasonable work. In addition, although DOJ has joined in accommodations, from modifying physical struc- private litigation and has submitted ainicustures to providing assistive devices to altering briefs, it has not initiated litigation against lawprogram requirements, to qualified inmates with enforcement or emergency services agencies that disabilities. DRS should make a special effort to have been charged with discriminating againstdisseminate to corrections officials information employees with disabilities.22 This is a seriouson strategies for providing reasonable accommo- omission given that DOJ is the only Federaldations, such as information on individually tai- agency that can initiate litigation against Statelored auxiliary aids and services and devices and local government entities. that facilitate effective communication cost effec- Recommendation: DOJ should develop and tively. DRS should work closely with advocacy publish additional technical assistance guidance groups and other organizations to ensure that for title II implementation to promote bettercorrections officials are informed of the most hiring policies and improve treatment of workers current assistive devices and services and how who acquire a disability during employment.they can be used in a correctional setting. DRS technical assistance materials should explain

21Seechap. 4, pp. 65-73.

22Seechap. 4, pp. 77-78. 23Seechap. 4, pp. 78-83. 140

150 that providing such reasonable accommodations viduals withdisabilities.Furthermore, DRS may enable inmates with disabilities to reduceshould work more closely with State and local their need for assistance from staff and benefitADA coordinators who will then be better able to from corrections programs, services, and activi-ensure that jail and prison staff who verbally or ties to the same extent as their peers withoutphysically assault any inmate are disciplined. disabilities. In addition, DRS should investigate complaints of unequal treatment of prisoners Finding: Statistics on the number of indi- with disabilities, obtain relief when discrimina- viduals with disabilities in the Nation's prisons tion occurs, and if necessary litigate cases of dis- are sparse. The need for more statistics is clear. crimination to demonstrate its intent to enforce Statistics are extremely important in developing the law. policy and planning its implementation, such as State and local entities responsible for pris-requiredarchitectural/accessibility changes. ons and jails should follow the accessibilityCorrections officials, for instance, can use data guidelines for correctional institutions developed on the numbers and characteristics of inmates by the U.S. Architectural and Transportationwith disabilities to plan for changes in the dis- Barriers Compliance Board to eliminate archi- abled inmate population and construct new or tectural and other structural barriers and enable modify existing facilities accordingly. In addi- visually impaired and wheelchair-boundin- tion,statisticscan beusefultodetermine mates, staff, and visitors to navigate their way to whether inmates with disabilities are serving and from cells, hygiene facilities, cafeteria, anddisproportionately longer sentences than in- other areas, as well as throughout the hallways. mates without, since often inmates with disabili- Similarly, they should ensure that prisons and ties are denied access to rehabilitative programs jails are equipped with emergency warning sys- that can allow them to earn credit that can tems with flashing lightssothat hearing- shorten their sentences.25 impaired inmates and staff can be alerted to Recommendation: DOJ should collect and evacuate the facility during an emergency. make readily available data that show past trends and future projections of the number of Finding: Individuals with cognitive deficits,inmates with specific cognitive, sensory, and hearing impairments, and HIV face particular mobility disabilities, as well as multiple disabili- difficulties and challenges that require reason-ties. These data should be accessible in printed able accommodations in correctional facilities. and electronic formats. DOJ should publish the The frequent "invisibility" of these disabilitiesdata annually, tabulated by State and by demo- distinguishes them from visible physical disabili- graphic characteristics such as race, color, na- ties. Inmates with disabilities are targets for tional origin, age, and geographical region. physical violence; and inmates with certain disabilities and diseases, such as those who are in- State Licensing Activities fected with HIV, have required protection from Finding: Title II does not set forth testing staff who hold prejudices against them.24 standards related to State licensing activities, Recommendation: DRS should fund work-but title III does. DOJ's position is that title III's shops at correctional associations' meetings thattesting standards "are useful as a guide for de- provide sensitivity training about the specialtermining what constitutes discriminatory con- needs of individuals with disabilities. Grantsduct by a public agency in testing situations un- could be given to teach corrections officials how der both titles I and II." In Rosenthal v. New to handle and be patient with inmates with spe- York Board of Law Examiners, the court relied cific disabilities. Similarly, training should be on title III regulations even though it was a title provided to inmates without disabilities to assist II case, because title III regulations discuss pro- their peers with disabilities. The training shouldfessional licensing and testing procedures that be developed in consultation with disability ad- title II regulations do not.26 vocacy groups and Federal agencies that administer programs for and are concerned with indi-

25Seechap. 4, p. 78.

24Seechap. 4, p. 78-79. 26Seechap. 4, pp. 89-91.

141

151 Recommendation: DRS should issue policy Web sites, such as instant access to informa- explaining the distinctions made by the courts tion.28 when addressing State licensing procedures. Recommendation: DOJ should develop and DOJ should issue comparable regulations orpublish a policy guidance document clarifying policy guidance on testing requirements to pro- that Web sites provided by State and local gov- vide the same kind of detail and comprehensive- ernments are services under title II of the ADA. ness it has in its title III guidance. Finding: With the Internet expanding and Technology and Web Sites with hundreds of new Web sites being added Finding: Cost can be a major barrier thatevery day, the issue of Web site accessibility for impedes access to assistive technology for indi-individuals with disabilities will become more viduals with disabilities. According to a disabil- urgent as time goes by. Educational institutions ity advocacy group, expenditures for adapted and government entities increasingly rely on the computers, communication devices,switches, World Wide Web to locate, collect, and dissemi- and other technological aids that enable indi-nate information to the public. DRS has not viduals with disabilities to participate in societytaken any significant action to ensure that the can be substantial. In 1996, former Senator Rob- issue of Web site accessibility for individuals ert Dole expressed concern that "thousands ofwith disabilities is addressed by State and local the Nation's disabled individuals" cannot affordgovernments. In particular, DRS has not devel- assistive technologies, some of which cost thou-oped or issued any accessibility standards for sands of dollars. Limited funding is available Web sites.29 through various Federal programs.27 Recommendation: State and local govern- Recommendation: DRS shouldprovide ments should ensure that individuals with vision technical assistance to the State and local gov-impairments or mobility impairments, as well as ernments under its jurisdiction on making cost-other individuals with disabilities, have equal effective purchases of certain assistive technol-access to all information and services they offer ogy devices that can be used by disabled indi-on the World Wide Web. DRS should become viduals who are active beneficiaries of particularmore active in its efforts to ensure equal access programs and services. DRS could also offerto State and local government Web sites for in- grants to State and local governments to pur-dividuals with disabilities. To ensure that State chase auxiliary aids and services that can enableand local governments' efforts in this area con- individuals with disabilities to access, partici-form to title II requirements, DRS should de- pate in, and benefit from programs, services, andvelop guidelines for State and local Web site ac- activities. cessibility. DRS should frame these guidelines in terms of what "access" means rather than by Finding: To date, .DOJ has not taken a posi- providing specific technology recommendations tion in its policy guidance or technical assistance because Internet technologies are constantly documents as to whether Web sites constitutegrowing and changing. DRS should hire experts services provided by State and local govern- to help develop the guidelines. ments and, therefore, under title II, must be In addition, DOJ should take the lead in de- equally accessible to individuals with disabili-veloping new and creative ways for people with ties. DOJ has indicated that State and local gov-disabilities to access the same computer technolo- ernments may provide information on the Web gies as people without disabilities. For example, sites through alternate formats such as mailingDOJ should participate in the efforts of technol- information in written, Braille, or large print ogy-related research organizations, disability ad- format and that this is adequate to ensure the vocacy groups, and other Federal agencies. Fur- program access for persons with disabilities re-thermore, DRS should provide technical assis- quired by title II. These alternate formats do nottance, outreach, and education on Web site acces- afford the same advantages and conveniences as

28Seechap. 4, pp. 109-12. 27Seechap. 4, p. 108. 29Seechap. 4, pp. 109-15.

142 152 sibility, through grant-funded training confer- Recommendation: DOJ should evaluate the ences for State and local government personnel. effectiveness of its outreach, education, and technical assistance to underserved areas such Chapter 5. Title II Outreach, as rural or minority communities. The agency Education, and Technical Assistance should give consideration to establishing an ad- Finding: The ADA technical assistance plan visory committee to assist staff in the evalua- stated that the Attorney General may require tion. DOJ should develop a plan that would focus the agencies responsible for implementing andon reaching these underserved groups. DOJ enforcing the ADA to provide periodic reports on should issue a report on the results of that progress in meeting their mandate. DOJ has notevaluation and the plans to meet the needs of implemented this provision, primarily because ofthe underserved in the disability community. internal computer-related problems and other technical assistancepriorities. However, the Finding: DRS appears to have made good technical assistance staff hopes that these prob-use of its staff resources in carrying out its out- lems have been resolved and that, in the nearreach, education, and technical assistance pro- future, DOJ will be able to prepare and dissemi-gram in support of the ADA. Of particular note nate a report on ADA technical assistance andare the resources allocated to the staffing of the outreach efforts by the responsible FederalADA information line and providing support to agencies.30 the clearinghouse function. Calls to the toll-free Recommendation: DOJ shouldissuea line average 250 to 350 per week, but when summary report of its technical assistance ef-there is publicity about the ADA, the number forts and those of the designated Federal agen- can increase dramatically. For example, after a cies in implementing the ADA over the last few mailing to small businesses through the IRS years. Thereafter, DOJ should issue progressquarterlymailing,thestaffreceivedover reports every 12 to 18 months. 100,000 telephone calls. In FY 1997, the staff received more than 120,000 calls, and the num- Finding: Initially, DOJ's outreach and edu-ber has continued at a high level. DRS has re- cation and technical assistance staff did notquested that the initial allocation of 10 term ap- make an extensive effort to reach underservedpointment slots be made permanent in the FY communities, such as individuals with disabili- 1999 budget request.32 ties living in rural and minority communities. Recommendation: DOJ should make DRS' More recently, DRS staff has placed a greater 10 positions supporting the ADA information emphasis on reaching these communities withline and clearinghouse functions permanent. In information on their rights under the ADA. Staffaddition to its toll-free information line fax on also are participating in a task force at thedemand services, DOJ should also develop an President's Committee on Employment of People Internet or e-mail service though which DOJ can with Disabilities that is designed to focus on out-respond to inquiries relating to disabilities. Fi- reach and technical assistance to the disablednally, DRS should ensure that all staff has an minority community.31 opportunity to operate these various information services so they are familiar with and knowledgeable issues affecting people nationwide.

3°Seechap. 5, pp. 117-18. 31Seechap. 5, pp. 127-31. 32Seechap. 5, pp. 119,123-27.

143

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13 0 BEST COPY AVAILABLE Barbara C. Deinhardt, "Title I of the Americans with National Institute on Disability and Rehabilita- Disabilities Act and Workers' Compensation: A tion Research. Call for Discussion," Employee Benefits Journal, Thomas E. Guild, "The Americans with Disabilities vol. 18, no. 4 (December 1993), pp. 20-27. Act: Pandora's Box for Employers or Panacea for Gerben De Jong and Andrew I. Batavia, "The Ameri- Disabled Workers?" Free Inquiry in Creative Soci- cans with Disabilities Act and the Current State of ology, vol. 20, no. 2 (November 1992), pp. 211-215. U.S. Disability Policy," Journal of Disability Policy Harlan Hahn, "The Potential Impact of Disability Studies, vol. 1, no. 3 (Fall 1990), pp. 65-82. Studies on Political Science (As Well as Vice- Denetta L. Dow ler, Anne E. Hirsh, Ryan D. Kittle, Versa)," Policy Studies Journal, vol. 21, no. 4 and Deborah J. 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Ellyn Moscowitz, Outside The "Compensation Bar-James P. Sadler, Comment, The Alcoholic and the gain: " Protecting The Rights Of Workers Disabled Americans with Disabilities Act of 1990: "The On The Job To File Suits For Disability Discrimi- Booze made Me Do It" Argument Finds Little Rec- nation, 27SANTA CLARAL.REV.587 (1997). ognition in Employment Discrimination Actions, Rosalie K. Murphy, Note, Reasonable Accommodation 28TEX. TECH.L.REV.861 (1997). and Employment Discrimination Under Title I of Stacy E. Seicshnaydre, Comment: Community Mental the Americans with Disabilities Act, 64 S.CAL.L. Health Treatment for the Mentally Ill-When Does REV.1607 (1991). Less Restrictive Treatment Become a Right, 66 Thomas P. Murphy, Disabilities Discrimination Under Tn.. L.REV.(1992). the Americans with Disabilities Act, 36CATH. U.L. 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168 rum and Epilepsy Foundation of America, Febru- Checklist for Existing FacilitiesThe Americans with ary 1993). Disabilities ActChecklist for Readily Achievable U.S. Department of Justice, Civil Rights Division, Barrier Removal, Mar. 31, 1992. Disability Rights Section, "Accessible Stadiums," Medical Care Facilities (ADA Accessibility Guidelines (undated). (ADAAG.6.0), Tech Street Series, Barrier Free U.S. Department of Justice, Civil Rights Division, Environments, Inc. (under grant from the Na- Disability Rights Section, "ADA Design Guide: Re- tional Institute on Disability and Rehabilitation striping Parking Lots," (undated). Research (NIDRR), 1994. U.S. Department of Justice, Civil Rights Division, The Americans with Disabilities Act Title IIIA Disability Rights Section, "ADA Information from Guide for Making Your Business Accessible to the Department of Justice," June 26, 1997. 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160 169 Program Grant Application Package, May 22, U.S. Department of Justice, Civil Rights Division, 1996. Enforcing the ADA: A Status Report from the De- U.S. Department of Justice, Civil Rights Division, partment of Justice (April-September 1995). Disability Rights Section, "Technical AssistanceU.S. Department of Justice, Civil Rights Division Materials Produced by Department of Justice that Disability Rights Section, Enforcing the ADA: A Apply to Title II of the ADA," Attachment C, un- Status Report from the Department of Justice dated, provided in response to U.S. Commission on (October 1995March 1996). Civil Rights Request for Information. U.S. Department of Justice, Civil Rights Division, U.S. Department of Justice, Civil Rights Division, Disability Rights Section, Enforcing the ADA. A Disability Rights Section, "Technical Assistance Status Report from the Department of Justice Materials Produced by Department of Justice (April-June 1996). 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170 Preliminary Information Request for the Opposition to Defendants' Motion to Dismiss the DOJ/CRD/DRSMission, Function, Responsibili- Complaint ties, Planning, Organization, Staffing and Budget DOJ Amicus Curiae Brief, Innovative Health Sys- Response to Request for Documents No. 4 tems, Inc., Martin A., Maria B., et al. v. The City Preliminary Information Request for DOJ/CRD of White Plains, NY, et al., (4th Cir. ), Docket No. Response to Request for Documents No. 1 #96-7797, Brief for the United States of America Preliminary Information Request for DOJ/CRD as Amicus Curiae filed Nov. 8, 1996. Response to Question No. 1 Frederick Arthur Shotz, v. the County of Palm Beach, Statutes Florida, et al., USDC S.D. FLA., C.A. #98-8182, Pub. L. No. 101-336, 104 Stat. 327 (codified at 42 Complaint, Class Action filed Mar. 24, 1998. U.S.C. §§ 12,101-12,213 (1994)). [Americans with EEOC Amicus Curiae Brief, Robert W. Smith v. Mid- Disabilities Act of 1990] land Brake, Inc., (10th Cir.), Docket No. # 96-3018, Public Law 102-140, October 28, 1991, Departments Brief of the Equal Employment Opportunity Com- of Commerce, Justice, and State, the Judiciary, mission as Amicus Curiae in Support of the Plain- and Related Agencies Appropriations Act, 1992 tiff-Appellant's Petition for Rehearing and Sugges- Public Law 102-395October 6, 1992, Departments tion for Rehearing En Banc filed Mar. 26, 1998. of Commerce, Justice, and State, the Judiciary, Robert P. Burch v. COCACOLA, Co., 119 F.3d 305 and Related Agencies Appropriations Act 1993 (5th Cir. 1997), Cert. Denied Jan. 20, 1998. Public Law 101-162November 21, 1989, Depart- Glen Arnold v. United Parcel Service, Inc.., 136 F.3d. ments of Commerce, Justice, and State, the Judi- 854; (1st Cir. 1998), Judgment of District Court ciary, and Related Agencies Appropriations Act Reversed and Remanded, Feb. 20, 1998. 1990 Joseph R. Matczak v. Frankford Candy and Chocolate Public Law 102-166, 101 Stat. 1071 (codified at 42 Company, 133 F.3d 910 (3rd Cir. 1997). Affirmed USC 1981 (November 21, 1991))[Civil Rights Act the grant of summary judgment to Matczk's claims of negligent and intentional infliction of of 1991] emotional distress. Reversed the grant of summary judgment as to the ADA claims. Remanded ADA Court Cases and Amicus Curiae Briefs to the District Court for further proceedings. Brief for the Petitioner, Randon Bragdon v. SidneyWilliam Runnebaum v. NationsBank of Maryland, Abbott, 107 F3rd 934 (1st Cir. 1997), cert. granted, 123 F.3d 156 (4th Cir. 1997). Affirmed USDC D. Nov. 26, 1997. MD decision. DOJ Amicus Curiae Brief , Williams et al., v. Wasser- Whitman-Walker Clinical Legal Services Department, man et al., USDC D. MD. , C.A. #CCB-94-880, 91- EEOC, Amici Curiae. 2564 & 94-1107, filed April 1996Memorandum of the United States in Support of Plaintiffs' Motion for Partial Summary Judgment Claim and In Op- Congressional position to Defendants' Motion for Summary Judg- Senate Bill 2345-100th Cong. 2d Sess. ment, or In the Alternative Motion for PartialSenate HearingsCommerce, Justice, State, the Ju- Summary Judgment (Integrated Setting) diciary and Related Agencies Appropriations, Fis- DOJ Amicus Curiae Brief, Ricky Wyatt, et al.. v. Di- cal Year 1984 ane. Martin, et al., USDC M. ALA, Northern Divi- 98th Congress, First Session, H.R. 3222/ S. 1721. sion, C.A. #3196N, filed February 1995United Senate HearingsCommerce, Justice, State, the Ju- States' Response to Defendants' Motion for Judg- diciary and Related Agencies Appropriations, Fis- ment on the Pleadings and Plaintiffs' Motion for cal Year 1987 Summary Judgment on Plaintiffs' Claims Under 99th Congress, Second SessionH.R. 5161. ADA of 1990 (Integrated setting) Senate Hearings,Commerce, Justice, State, the Ju- DOJ Amicus Curiae Brief, Lakes Region Consumer diciary and Related Agencies Appropriations, Fis- Advisory Board (Cornerbridge) v. City of Laconia, cal Year 1988 NH, USDC D. NH, C.A. #93-338M, Supplemen- 100th Congress, First Session. tal Memorandum of the United States as Amicus Proceedings and DebatesAmericans with Disabili- CuriaeRe: If Title II of the ADA and Section 504 ties Act, 135 Cong. Rec. S-933, 9/7/89. of the Rehabilitation Act of 1973 apply to zoning H.R. 4498-100th Congress, Second Session, Apr. 29, enforcement activities. 1988 Lakes Region Consumer Advisory Board (Cornerbridge) H.R. 3433-105th Congress, Second Session, May 18, v. City of Laconia, NH, USDC D. NH, C. A. # 93- 1998 338M Memorandum of the United States As Ami- H.R. 2273-101st Congress -1st. Sessl. cus Curiae.(Re: Zoning) S. 1858-105th CongressSecond Session, Mar. 30, Innovative Health Systems, Inc. , Martin A., Maria B. 1998. et al. V. The City of White Plains, S.J., USDC S.D. Proceedings and DebatesAmericans with Disabili- NY, Memorandum Decision and Order issued ties Act, 136 Cong. Rec. H.R. 2273-5/17,22, 1990. June 12, 1996, C.A. # 95 CIV 9642 (BDP) S. 933 and H.R. 2273-101st Congress, Conference Innovative Health Systems, Inc., Martin A., Maria B. Negotiations-5/24, 6/6. 7/11-13, 1990. et al. V. City of White Plains, USDC S.D. NY, C.A. Selected Executive StatementsS. 933, H.R. 2273 #95 CIV 9642 (BDP), Memorandum of Law of the Affirmative Action, Preferences, and the Equal Em- Untied States Amicus Curiae in Support of Plain- ployment Opportunity Act of 1995, Hearing of the tiffs' Motion for a Preliminary Injunction and in Comm. On Labor and Human Resources, U.S. Senate, 104th Cong., 2nd Sess. (Apr. 30, 1996).

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172 Oversight of the Equal Employment Opportunity Testimony of Tony E. Gallegos, Commissioner. EEOC Commission: Hearing Before the Committee on La- and other EEOC staff concerning the Fiscal Year bor and Human Resources, United States Senate, 1994 Budget Request for the U.S Equal Employ- 104th Congress, May 23, 1995. ment Opportunity Commission (EEOC) Mar. 31, Oversight of the Equal Employment Opportunity 1993 before the House Subcommittee of the Com- Commission: Hearing Before the Subcommittee on mittee on Appropriations, 103rd Congress, First Select Education and Civil Rights of the Committee SessionDepartments of Commerce, Justice, and on Education and Labor, United States House of State, the Judiciary, and related agencies appro- Representatives, 103rd Cong., July 26, 1994. priations for 1994. Oversight Hearing of the Equal Employment Opportu- Testimony of Tony E. Gallegos, Commissioner, EEOC nity Commission; Hearing Before the Subcommit- and other EEOC Staff concerning the Fiscal Year tee on Selected Education and Civil Rights of the 1995 Budget Request for the U.S. Equal Employ- Committee on Education and Labor, United States ment Opportunity Commission (EEOC) Mar. 24, House of Representatives, 103rd Congress, Second 1994 before the House Subcommittee of the Com- Session, Mar. 24, 1994. mittee on Appropriations, 103rd Congress, Second Report 104-676 to accompany H.R. 3814, Departments Session, Departments of Commerce, Justice, and of Commerce, Justice, and State, The Judiciary, State, the Judiciary, and related Agencies appro- and Related Agencies Appropriations Bill, Fiscal priations for 1995. Year 1997, 104th Congress, Second Session, July Rehabilitation Act Amendments of 1992, S. REP. No. 16, 1996. 102-357 (Aug. 3, 1992). Hearings before the House Subcommittee on the De- Report on Legislative Activities of the Comm. 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HRG. for '1996, EEOC FY 1996 Budget, Part 9, 104th 105-174 (July 10, 1997), Hearing Before the Sub- Congress, First Session, May 11, 1995. committee on Employment and Training of the Hearings before the House Subcommittee on the De- Committee on Labor and Human Resources, U.S. partments of Commerce, Justice, and State, the Senate. Judiciary, and Related Agencies Appropriations for 1994, DOJ Budget for Fiscal Year 1994, Part Testimony and Statements 2B, 103d Congress, First Session, May 4, 1993. Fred Alvarez, Partner, Testimony on behalf of Wilson Hearings before the House Subcommittee on the De- Sonsini Goodrich & Rosati, Palo Alto, CA., before partments of Commerce, Justice, and State, the the House Subcommittee on Employer/Employee Judiciary, and Related Agencies Appropriations Relations, Committee on Education and the Work- for 1989, EEOC Budget for Fiscal year 1989, Part force re: "The Future Direction of the Equal Em- 1, 100th Congress, Second Session, February 1988. ployment Opportunity Commission (EEOC)," Mar. Report 102-709 to accompany H.R. 5678, Departments 3. 1998. of Commerce, Justice and State, the Judiciary, and Alfred W. Blumrosen, Thomas A. Cowan Professor of Related Agencies Appropriations Bill, Fiscal Year Law, Rutgers Law School, testimony before the 1993, 102d Congress, Second Session, July 22, Subcommittee on Select Education and Civil 1992. Rights, U. S. House of Representatives, "Oversight Hearings before the House Subcommittee on the De- Hearing on the Equal Employment Opportunity partments of Commerce, Justice, and State, the Commission (EEOC)," July 26, 1994. Judiciary, and Related Agencies Appropriations William H. Brown III, Esq., Schnader, Harrison, Se- for 1992, EEOC FY 1992, 102d Congress, First gal & Lewis, Philadelphia, PA, "Testimony before Session. Committee on Education and the Workforce, Hearings before the House Subcommittee on the De- Hearing to Review the Equal Employment Oppor- partments of Commerce, Justice, and State, the tunity Commission," Oct. 21, 1997. Judiciary, and Related Agencies Appropriations Michael A. Carvin, "Testimony before the House Sub- for 1992, EEOC Budget for Fiscal Year 1992, Part committee on the Constitution, Committee Civil 5, Budget 102d Congress, First Session, Feb. 21, Rights Division Oversight," May 20, 1997. 1991. Gilbert Casellas, Chairman, U.S. Equal Employment Report 103.309 to accompany H.R. 4603, Departments Opportunity Commission, "Testimony before the of Commerce, Justice and State, the Judiciary, and Senate Committee on Labor and Human Re- Related Agencies Appropriation Bill, 1995 and sources,re:Equal EmploymentOpportunity Supplemental Appropriation Bill,1994,103rd Commission Oversight Hearing," May 23, 1995. Congress, Second Session, July 14, 1994. David A. Cathcart, Partner, "Testimony of Behalf of Hearing before the House Subcommittee on the De- Gibson, Dunn & Crutcher, Los Angeles, CA., before partment of Commerce, Justice and State, the Ju- the HouseSubcommittee on Employer-Employee diciary, and Related Agencies Appropriations for Relations, Committee on Education and the Work- 1997, EEOC Budget for Fiscal Year 1997, Part 4, force re: The Future Direction of Equal Employ- 104th Congress, Second Session, March 1996. ment Opportunity Commission,"Mar. 3, 1998.

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1 73 Midgdia Chinea-Varela, "Statement" for Hearingon Paul M. Igasaki, Chairman, Equal Employment Op- the Equal Employment Opportunity Commission portunity Commission, "Testimony beforethe (EEOC): Is it Providing Fairness and Efficiency?" House Subcommittee on Employer-Employee Re- Oct. 21, 1997. lations, Committee on Education and the Work- Robert Clegg, General Counsel, "Testimony on Behalf force," re: the Future Direction of Equal Employ- of the Center for Equal Opportunity," at the U.S. ment Opportunity Commission, Mar. 3, 1998. House Judiciary Subcommittee on the Constitu-Leroy T. Jenkins, Assistant General Counsel, Sys- tion, House Judiciary Committee re: Civil Rights temic Litigation Services Section, Office of the Division Oversight, February 25, 1998. General Counsel, Equal Employment Opportunity Charles B. Craver, Professor, George Washington Commission, "Testimony before the House Sub- University, statement before the Subcommittee on committee on Government Activities and Trans- Select Education and Civil Rights Committeeon portation, Committee on Government Operations Education and Labor, U.S. House of Representa- (in response to questions posed tothe then tives, "Oversight Hearing on the Equal Employ- Chairman of the Commission Clarence Thomas in ment Opportunity Commission," July 26, 1994. a Feb. 12, 1987 letter). Martha F. Davis, Legal Director, "Testimony on behalfSteven E. Kane, Vice President, Corporate Affairs, of NOW Legal Defense and Education Fund, at the Testimony on Behalf of Baxter Healthcare Corpo- U.S. House of Representatives, Subcommitteeon ration before the House Subcommittee on Em- the Constitution, Committee on the Judiciary,re: ployer-Employee Relations, House Committeeon Civil Rights Division Oversight" Feb. 25, 1998. 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Testimony before the House Subcommittee on Harris W. Fawell, Chairman, Subcommitteeon Em- Employment Opportunities, Committee on Educa- ployer-Employee Relations, Committee on Educa- tion and Labor, May 20, 1988. tion and the Worforce, U.S. House of Representa- Pamela S. Karlan, Professor of Law, and Roy L. and tives, Statement on the Committee Hearing on Rosamond Woodruff Morgan, Research Professor, "The Equal Employment Opportunity Commission at the University of Virginia School of Law in (EEOC): Is It Providing Fairness and Efficiency?" Charlottesville, Virginia, "Testimony before the Oct. 21, 1997. House Subcommittee on the Constitution, Com- Wayne S. 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165 174 Education and the Workforce, "Oversight of the Rights, U.S. House of Representatives, "Oversight EEOC: Is it Providing Fairness and Efficiency?" Hearing on the Equal Employment Opportunity Oct. 21, 1997. Commission," July 26, 1994. Weldon H. Latham, General Counsel, Testimony on David L. Rose, Testimony before the Subcommittee on behalf of the National Coalition of Minority Busi- Select Education and Civil Rights Committee on nesses and Senior Partners, Shaw Pittman, Potts Education and Labor, U.S. House of Representa- & Trowbridge before the House Subcommittee on tives, "Oversight Hearing on the Equal Employ- the Constitution, Committee on the Judiciary ment Opportunities Commission," July 26, 1994. "Federal Remedial Actions Remains an Imperative Morton Rosenberg, Specialist in American Public to Establishing a level playing Field for Minorities Law, " Testimony on behalf of the Congressional and Women in America," May 20, 1997. 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Morra, Director, Education and Employment on theU.S. Equal Employment Opportunity Issues, Human Resources Division, General Ac- Commission, Oct. 21, 1997. counting Office, Statement, "EEOC: An Overview," Cathie B. Shattuck, "Testimony on behalf of the Soci- Testimony before the Subcommittee on Select ety for Human Resource Management before the Education and Civil Rights, Committee on Educa- House Subcommittee on Employer-Employee Re- tion and Labor, U.S. House of Representatives," lations, Committee on Education and the Work- July 27, 1993 force re: Future Direction of the Equal Employ- National Council of La Raza, "Testimony Regarding ment Opportunity Commission," Mar. 3, 1998. the Performance of the United States Equal Em-Lawrence M. Stratton,J.D. 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Final Rule which permits an Employer to obtain a John P. Relman, Washington Lawyers' Committee for Voluntary Waiver from an Older Worker of ADEA Civil Rights and Urban Affairs, statement before Rights, which is not Supervised or Reviewed by the Subcommittee on Sele,:t Education and Civil the Commission, Jan. 28, 1988.

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175 Clarence Thomas, Chairman, Equal Employment Clarence Thomas, Chairman; Equal. Employment Opportunity Commission, Testimony before the Opportunity Commission, Testimony before the House Subcommittee on Commerce, Justice, State House Subcommittee on Employment and Hous- and Judiciary Committee on Appropriations, re: ing, Committee on Government Operations, re: FY 1989 Budget, Mar. 7, 1988. why some ADEA charges have exceeded the Stat- Clarence Thomas, Chairman, Equal Employment ute of Limitations during the past year and to dis- Opportunity Commission, Testimony before the cuss actions by EEOC concerning Ms. Lynn House Subcommittee on Employment Opportuni- Bruner, Mar. 20, 1989. ties, Committee on Education and Labor re: Dis- Clarence Thomas, Chairman, Equal Employment cussions on the EEOC's position on the Waiver Opportunity Commission, Testimony before the rule under the ADEA, Mar. 17, 1988. House Subcommittee on Employment Opportuni- Clarence Thomas, Chairman, Equal Employment ties, Committee on Education and Labor and the Opportunity Commission, Testimony before the House Select Committee on Aging, re: H.R. 1432, House Subcommittee on Telecommunications and Age Discrimination in Employment Waiver Pro- Finance of the Committee on Energy and Com- tection Act of 1989, Apr. 18, 1989. merce, May 17, 1988, re:. Equal Employment Op- Testimony on the Ticket to Work and Self-Sufficiency portunity in the Broadcast, Cable and Telephone Act of 1998, Mar. 17, 1998 and accompanying Communications Industries. news release. Clarence Thomas, Chairman, Equal Employment Opportunity Commission, Testimony before the Miscellaneous House Subcommittee on Employment and Hous- Cornell University, School of Industrial and Labor ing, Committee on Government Operations,re: Relations, Program on Employment and Disabil- Why EEOC let the Statute of Limitations lapse in ity, No Barriers for Business: bnplementing the hundreds of open ADEA charges, Mar. 29, 1988. Americans with Disabilities Act (video and train- Clarence Thomas, Chairman, Equal Employment ing material), funded by National Institute on Opportunity Commission, Testimony before House Disability and Rehabilitation Research, 1996. Subcommittee on Civil Service, Committee on Post Cornell University, School of Industrial and Labor Office and Civil Service re: Discuss Hispanic em- Relations, Program on Employment and Disabil- ployment in the federal government, June 14, ity, bnplementing the Americans with Disabilities 1988. Act, various issues. Clarence Thomas, Chairman, Equal Employment Special Analyses Budget of the United States Gov- Opportunity Commission, Testimony before the ernment, Fiscal Year 1980. Senate Special Committee on Aging re: discuss Special Analyses Budget of the United States Gov- EEOC's administration and enforcement of ADEA, ernment, Fiscal Year 1981. June 24, 1988. Special Analyses JCivil Rights ActivitiesBudget Clarence Thomas, Chairman, Equal Employment of the United States Government, 1983. Opportunity Commission, Testimony before theSpecial Analyses Budget of the United States Gov- House Subcommittee on Civil Service, Committee ernment, Fiscal Year 1985. on Post Office of Civil Service re: discuss OPM's Special Analyses Budget of the United States Gov- new plan to test and hire professionals for entry- ernment, Fiscal Year 1986. level positions in the federal government, July 12, Special Analyses Budget of the United States Gov- 1988. ernment, Fiscal Year 1987. Clarence Thomas, Chairman, Equal Employment Special Analyses Budget of the United States Gov- Opportunity Commission, Testimony before the ernment, Fiscal Year 1988. House Subcommittee on Commerce, Justice, State Special Analyses Budget of the United States Gov- and Judiciary, Committee on Appropriationsre: ernment, Fiscal Year 1989. EEOC's fiscal year 1990 budget, Feb. 21, 1989. The Access Board (a.k.a. U.S. Architectural and Clarence Thomas, Chairman, Equal Employment Transportation Barriers Compliance Board) Other Opportunity Commission, Testimony before the Resources Listing re: List of other Federal agen- Senate Subcommittee on Labor, Committeeon Labor and Human Resources, re: S.54, the Age cies that provide technical assistance to the ADA. Discrimination in Employment Waiver Protection Disability Rights Education and Defense Fund, Inc. (DREDF) "AGuidetoLegalDocuments." Act, Mar. 16, 1989. (undated).

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