Number range CHAPTERIN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

FRANK G. McALEESE,

Plaintiff,

v\.

PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ET AL.

Defendants,

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) No. CA99-381 Erie

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**THE UNITED STATES' SUPPLEMENTAL OPPOSITION TO**

**DEFENDANTS' SECOND MOTION FOR SUMMARY JUDGMENT**

**[Preliminary Statement]{.underline}**

Defendants have moved for summary judgment on four issues. Defendants
argue: (1) plaintiff's claim under the Americans with Disabilities Act,
42 U.S.C. 12111 et seq \["ADA"\] is barred by the Eleventh Amendment;
(2) the individual defendants should be dismissed from this action
because there is no individual liability under title II of the ADA or
section 504 of the Rehabilitation Act, 29 U.S.C. 704; (3) plaintiff is
not entitled to punitive damages under the ADA or Rehabilitation Act;
and (4) plaintiff's claim for compensatory damages is barred by the
Prison Litigation Reform Act.

In response to the Court's request for briefs on the issue of whether
Congress properly abrogated the states' Eleventh Amendment immunity when
it enacted title II of the ADA, the United States files this
supplemental opposition to defendants' second motion for summary
judgment.

**BACKGROUND**

**1. [Statutory Framework]{.underline}:** The Americans with
Disabilities Act of 1990 (Disabilities Act), 42 U.S.C. 12101
[et]{.underline} [seq.]{.underline}, established a \"comprehensive
national mandate for the elimination of discrimination against
individuals with disabilities.\" 42 U.S.C. 12101(b)(1). Congress found
that "historically, society has tended to isolate and segregate
individuals with disabilities," and that "such forms of discrimination
\* \* \* continue to be a serious and pervasive social problem." 42
U.S.C. 12101(a)(2). Congress specifically found that discrimination
against persons with disabilities "persists in such critical areas as
employment, housing, public accommodations, education, transportation,
communication, recreation, institutionalization, health services,
voting, and access to public services." 42 U.S.C. 12101(a)(3). In
addition, persons with disabilities

> continually encounter various forms of discrimination, including
> outright intentional exclusion, the discriminatory effects of
> architectural, transportation, and communication barriers,
> overprotective rules and policies, failure to make modifications to
> existing facilities and practices, exclusionary qualification
> standards and criteria, segregation, and relegation to lesser
> services, programs, activities, benefits, jobs, or other
> opportunities.

42 U.S.C. 12101(a)(5). As a result, "people with disabilities, as a
group, occupy an inferior status in our society, and are severely
disadvantaged socially, vocationally, economically, and educationally."
42 U.S.C. 12101(a)(6). Congress concluded that persons with disabilities

> have been faced with restrictions and limitations, subjected to a
> history of purposeful unequal treatment, and relegated to a position
> of political powerlessness in our society, based on characteristics
> that are beyond the control of such individuals and resulting from
> stereotypic assumptions not truly indicative of the individual ability
> of such individuals to participate in, and contribute to, society.

42 U.S.C. 12101(a)(7).

Based on those findings, Congress "invoke\[d\] the sweep of
congressional authority, including the power to enforce the fourteenth
amendment\" to enact the Disabilities Act. 42 U.S.C. 12101(b)(4). The
Disabilities Act targets three particular areas of discrimination
against persons with disabilities. Title I, 42 U.S.C. 12111-12117,
addresses discrimination by employers affecting interstate commerce;
Title II, 42 U.S.C. 12131-12165, addresses discrimination by
governmental entities in the operation of public services, programs, and
activities, including transportation; and Title III, 42 U.S.C.
12181-12189, addresses discrimination in public accommodations operated
by private entities.

This case involves a suit filed under Title II. That Title provides that
\"no qualified individual with a disability shall, by reason of such
disability, be excluded from participation in or be denied the benefits
of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.\" 42 U.S.C. 12132. A
\"public entity\" is defined to include \"any State or local
government\" and its components. 42 U.S.C. 12131(1)(A) and (B). The term
"disability" is defined as "a physical or mental impairment that
substantially limits one or more of the major life activities of \[an\]
individual"; "a record of such an impairment"; or "being regarded as
having such an impairment." 42 U.S.C. 12102(2). A "qualified individual
with a disability" is a person "who, with or without reasonable
modifications \* \* \* meets the essential eligibility requirements" for
the governmental program or service. 42 U.S.C. 12131(2); 28 C.F.R.
35.140.[^1]

The discrimination prohibited by Title II of the Disabilities Act
includes, among other things, denying a government benefit to a
qualified individual with a disability because of his disability,
providing him with a lesser benefit than is given to others, or limiting
his enjoyment of the rights and benefits provided to the public at
large. See 28 C.F.R. 35.130(b)(1)(i), (iii), (vii). In addition, a
public entity must make reasonable modifications in policies, practices,
or procedures if the accommodation is necessary to avoid the exclusion
of individuals with disabilities and can be accomplished without
imposing an undue financial or administrative burden on the government,
or fundamentally altering the nature of the service. See 28 C.F.R.
35.130(b)(7). The Disabilities Act does not normally require a public
entity to make its existing physical facilities accessible. Public
entities need only ensure that "each service, program or activity, \* \*
\* when viewed in its entirety, is readily accessible to and usable by
individuals with disabilities," unless to do so would fundamentally
alter the program or impose an undue financial or administrative burden.
28 C.F.R. 35.150(a). However, facilities altered or constructed after
the effective date of the Act must be made accessible. 28 C.F.R.
35.150(a)(1), 35.151.

Title II may be enforced through private suits against public entities.
42 U.S.C. 12133. Congress expressly abrogated the States' Eleventh
Amendment immunity to private suits in federal court. 42 U.S.C. 12202.

**ARGUMENT**

> BECAUSE IT COMBATS AN ENDURING PROBLEM OF UNCONSTITUTIONAL
> MISTREATMENT AND DISCRIMINATION AGAINST INDIVIDUALS WITH DISABILITIES,
> TITLE II OF THE AMERICANS WITH DISABILITIES ACT IS VALID SECTION 5
> LEGISLATION

Section 5 of the Fourteenth Amendment is an affirmative grant of
legislative power to Congress, see [Kimel]{.underline} v. [Florida Bd.
of Regents]{.underline}, 528 U.S. 62, 80 (2000), that gives Congress the
"authority both to remedy and to deter violation of \[Fourteenth
Amendment\] rights \* \* \* by prohibiting a somewhat broader swath of
conduct, including that which is not itself forbidden by the Amendment's
text." [Board of Trs. of the Univ. of Ala.]{.underline} v.
[Garrett]{.underline}, 531 U.S. 356, 365 (2001); see also [City of
Richmond]{.underline} v. [J.A. Croson Co.]{.underline}, 488 U.S. 469,
488 (1989) (opinion of O'Connor, J.) ("\[I\]n no organ of government,
state or federal, does there repose a more comprehensive remedial power
than in the Congress" when enforcing the Fourteenth Amendment.)
(citation & emphasis omitted). Section 5 thus grants Congress broad
power indeed, including the power to abrogate a State's Eleventh
Amendment immunity, [Garrett]{.underline}, 531 U.S. at 364. Although
Section 5 empowers Congress to enact prophylactic and remedial
legislation to enforce Fourteenth Amendment rights, it also requires a
"congruence and proportionality between the injury to be prevented or
remedied and the means adopted to that end." [City of
Boerne]{.underline} v. [Flores]{.underline}, 521 U.S. 507, 520 (1997).
Title II of the Disabilities Act is appropriate Section 5 legislation
because it responds to a history of pervasive discrimination and
deprivation of constitutional rights by States, which has spawned
continuing discrimination and the denial of rights in the daily
decisions of officials, and because the legislation is reasonably
designed to prevent and remedy those constitutional violations.

**A. Title II Of The Disabilities Act Is Valid Section 5 Legislation
Because It Targets Distinctly Governmental Activities That Often Burden
Fundamental Rights**

In [Garrett]{.underline}, [supra]{.underline}, the Supreme Court held
that Title I of the Disabilities Act, 42 U.S.C. 12111 to 12117, which
prohibits public and private employers from discriminating in employment
on the basis of disability, was not valid Section 5 legislation. The
arguments of defendants largely assume that the invalidity of Title II's
abrogation follows ineluctably from [Garrett]{.underline}. See Def.Br.
at 3-8. But, if Titles I and II were constitutionally indistinguishable,
the Supreme Court would have had no reason to limit its holding in
[Garrett]{.underline}, 531 U.S. at 360 n.1. Moreover, defendant's
argument overlooks three critical distinctions between the two Titles.

[First]{.underline}, in enacting Title I, Congress simply included
States as employers within a general ban on employment discrimination by
private employers, without considering sufficiently whether there was a
distinctive problem of unconstitutional employment discrimination by the
States. [Garrett]{.underline}, 531 U.S. at 369-371.[^2] Title II, by
contrast, is a law that Congress enacted specifically and deliberately
to regulate the conduct of state and local governments [qua]{.underline}
[governments]{.underline}. Congress thus was singularly focused on the
historic and enduring problem of official discrimination and
unconstitutional treatment on the basis of disability by "any State or
local government," 42 U.S.C. 12131(1)(A) and (B).

For that reason, as [Garrett]{.underline} acknowledged, Title II is
predicated on a more substantial legislative record pertaining to
"discrimination by the States in the provision of public services." 531
U.S. at 371 n.7; see also Section B(2)(b), [infra]{.underline}. That
legislative record, in turn, led Congress to make specific findings
about the historic and enduring problem of discrimination by States and
their subdivisions. Contrast [Garrett]{.underline}, 531 U.S. at 371 (no
findings about state employment discrimination). In particular, Congress
found that "discrimination against individuals with disabilities
persists in such critical areas as \* \* \* education, transportation,
\* \* \* institutionalization, \* \* \* voting, and access to public
services." 42 U.S.C. 12101(a)(3). Those are areas for which States and
their subdivisions are either exclusively or predominantly responsible.
And the same Committee Reports that the Supreme Court in
[Garrett]{.underline} found lacking with regard to public employment,
531 U.S. at 371-372, are directly on point here, declaring that "there
exists a compelling need to establish a clear and comprehensive Federal
prohibition of discrimination on the basis of disability in the area\[\]
of \* \* \* public services." H.R. Rep. No. 485, 101st Cong., 2d Sess.
Pt. 2, at 28 (1990); see also S. Rep. No. 116, 101st Cong., 1st Sess. 6
(1989) ("Discrimination still persists in such critical areas as \* \*
\* public services.").

Congress thus specifically concluded, on the basis of a weighty
legislative record, that States were contributors to the "history of
purposeful unequal treatment" and participants in "the continuing
existence of unfair and unnecessary discrimination and prejudice"
against individuals with disabilities, 42 U.S.C. 12101(a)(7) and (9).
When Congress focuses in that manner on the problem of unconstitutional
conduct by States and their subdivisions and determines that
"legislation is needed to secure the guarantees of the Fourteenth
Amendment," Congress's "conclusions are entitled to much deference."
[Kimel]{.underline}, 528 U.S. at 81 (citation omitted).

[Second]{.underline}, because Title I pertains only to employment,
decisions made by state employers concerning individuals with
disabilities implicate only the Equal Protection Clause's guarantee
against irrational employment decisions. [Garrett]{.underline}, 531 U.S.
at 366-368. Like [Flores]{.underline}, 521 U.S. at 512-514, and
[Kimel]{.underline}, 528 U.S. at 83, Title I thus addressed state
conduct in an area where the States, as sovereigns, are given an
extraordinarily wide berth and constitutional violations are
infrequently found.

Title II, by contrast, enforces not only the Equal Protection Clause,
but also a wide array of fundamental constitutional rights \-- the right
to petition the government, the right of access to the courts, the right
to vote, Fourth and Eighth Amendment protections, and procedural due
process. Indeed, Title I dealt only with the States' denial of an
opportunity \-- state employment \-- to individuals who equally could
pursue employment in the private sector. Title II, by contrast,
regulates state and local governments when they intervene in and
regulate the activities of private citizens, or deprive them of their
liberty, property, or parental rights. Title II also regulates a State's
ability to deny a class of citizens access to government services upon
which all citizens must rely for basic opportunities (and sometimes the
necessities) of modern life. The private sector cannot provide medical
licenses, or the ability to cast a ballot, file a lawsuit, secure the
protection of the police, or seek the enactment of legislation. Title II
thus legislates in an area where the States' conduct often is subject to
heightened scrutiny, and where its ability to infringe those rights
generally, let alone to deny them disparately to one particular segment
of the population based on stereotypes, fears, economics, or
administrative convenience, is constitutionally curtailed.

[Third]{.underline}, unlike [Kimel]{.underline} and
[Garrett]{.underline}, this case potentially implicates concerns beyond
abrogation and the ability of individuals to sue the States for money
damages. Because both [Kimel]{.underline} and [Garrett]{.underline}
targeted [employment]{.underline} discrimination, those decisions only
invalidated the statutes' abrogation provisions; the substantive
prohibitions of those laws remain applicable to the States under
Congress's Commerce Clause power and can be enforced against state
officials under [Ex parte Young]{.underline}, 209 U.S. 123 (1908). See
[Garrett]{.underline}, 531 U.S. at 374 n.9; [EEOC]{.underline} v.
[Wyoming]{.underline}, 460 U.S. 226, 235-243 (1983).

For all of those reasons, and especially because this case may implicate
the constitutional authority for enactment of Title II's substantive
prohibitions as applied to all levels of government, this Court is not
constrained, as the Supreme Court was in [Garrett]{.underline}, to
consider only the legislative evidence of unconstitutional conduct by
the States. When Congress specifically focuses the substantive
provisions of Section 5 legislation jointly on the operations of state
and local governments [qua]{.underline} governments, its enforcement
powers under Section 5, like the substantive protections of Section 1,
can charge the States with some responsibility for the unconstitutional
conduct of the subdivisions of government that the States themselves
create and empower to act.[^3] That is, in part, because the line
between state and local government is much harder to discern in the
context of public services than it is in employment. While state and
local employment decisions can be made independently, the operations of
state and local governments in the provision of government services,
such as voting, education, welfare benefits, zoning, licensing, and the
administration of justice are often inextricably intertwined. In
education, for example, the State plays a substantial role in directing,
supervising and limiting the discretion of local agencies, either by
administrative supervision or by statutory direction. The complexity of
the relationship between state and local governments in the
administration of public services often raises difficult, state-by-state
questions regarding whether a particular entity is operating as an "arm
of the state." In some cases, the local government officials act at the
direct behest of the State government pursuant to State mandates. And in
all cases, the local government is able to discriminate only because it
exercises power delegated to it by the State. The record of historic and
pervasive discrimination and unconstitutional treatment by all levels of
government further blurs the line between state and local governmental
action, because the conduct of local officials is traceable, at least in
part, to the rules of state-mandated discrimination and segregation
under which they operated for years.

Indeed, under similar circumstances, the Supreme Court has recognized
the relevance of local governmental conduct in assessing the validity of
Section 5 legislation as applied to the States. In
[Garrett]{.underline}, the Court cited the substantive provisions of the
Voting Rights Act of 1965, which were upheld in [South
Carolina]{.underline}, [supra]{.underline}, as "appropriate" Section 5
legislation regulating the States because it was predicated upon a
documented "problem of racial discrimination in voting."
[Garrett]{.underline}, 531 U.S. at 373 (citing 383 U.S. at 312-313).
Much of the evidence of unconstitutional conduct described in [South
Carolina]{.underline}, 383 U.S. at 312-314, however, involved the
conduct of [county]{.underline} and [city]{.underline} officials.[^4]
Indeed, almost all of the evidence of specific instances of
discrimination underlying the Voting Rights Act of 1965 concerned local
officials rather than state officials; the rest of the evidence was
either statistical evidence or lists of state laws.[^5] See also
[Flores]{.underline}, 521 U.S. at 530-531 (in analyzing Section 5 as a
source of power for substantive provisions of a law, the Court did not
distinguish between evidence of state and local governmental conduct).
In sum, while Congress compiled ample evidence of unconstitutional
conduct by the States themselves in enacting Title II, the
constitutional question presented here, unlike [Garrett]{.underline},
compels consideration of the evidence of local government discrimination
as well.

**B. After An Exhaustive Investigation, Congress Found Ample Evidence Of
A Long History And A Continuing Problem Of Unconstitutional Treatment Of
Individuals With Disabilities**

Defendants argue that "nowhere in the findings does Congress state that
the States have engaged in any unconstitutional discrimination against
the disabled." Def. Br. 7. That argument is profoundly mistaken.

**1. Congress Exhaustively Investigated Governmental Discrimination On
The Basis of Disability**

Congress's "special attribute as a legislative body lies in its broader
mission to investigate and consider all facts and opinions that may be
relevant to the resolution of an issue." [Fullilove]{.underline} v.
[Klutznick]{.underline}, 448 U.S. 448, 503 (1980) (Powell, J.,
concurring). "One appropriate source" of evidence for Congress to
consider in combating disability discrimination

> is the information and expertise that Congress acquires in the
> consideration and enactment of earlier legislation. After Congress has
> legislated repeatedly in an area of national concern, its Members gain
> experience that may reduce the need for fresh hearings or prolonged
> debate when Congress again considers action in that area.

[Fullilove]{.underline}, 448 U.S. at 503 (Powell, J., concurring); see
also [South Carolina]{.underline}, 383 U.S. at 330 ("In identifying past
evils, Congress obviously may avail itself of information from any
probative source.").

The Congress that enacted Title II of the Disabilities Act brought to
that legislative process more than forty years of experience studying
the scope and nature of discrimination against persons with disabilities
and testing incremental legislative steps to combat that discrimination.
See [Garrett]{.underline}, 531 U.S. at 390-391 (Breyer, J., dissenting)
(listing prior legislation). Building on that expertise, Congress
commissioned two reports from the National Council on the Handicapped,
an independent federal agency, to report on the adequacy of existing
federal laws and programs addressing discrimination against persons with
disabilities.[^6] That study revealed that "the most pervasive and
recurrent problem faced by disabled persons appeared to be unfair and
unnecessary discrimination." National Council on the Handicapped, [On
the Threshold of Independence]{.underline} 2 (1988)
([Threshold]{.underline}); see National Council on the Handicapped,
[Toward Independence: An Assessment of Federal Laws and Programs
Affecting Persons with Disabilities]{.underline} (1986). Persons with
disabilities reported "denials of educational opportunities, lack of
access to public buildings and public bathrooms, \[and\] the absence of
accessible transportation." [Threshold]{.underline} 20-21, 41. Congress
also learned of an "alarming rate of poverty," a dramatic educational
gap, a "Great Divide" in employment, and a life of social
"isolat\[ion\]" for persons with disabilities. [Id]{.underline}. at
14.[^7]

Congress itself engaged in extensive study and fact-finding concerning
the problem of discrimination against persons with disabilities, holding
13 hearings devoted specifically to consideration of the Disabilities
Act. See [Garrett]{.underline}, 531 U.S. at 389-390 (Breyer, J.,
dissenting) (listing hearings). In addition, a congressionally
designated Task Force held 63 public forums across the country that were
attended by more than 30,000 individuals. Task Force on the Rights and
Empowerment of Americans with Disabilities, [From ADA to
Empowerment]{.underline} 16 (1990) (Task Force Report). The Task Force
also presented to Congress evidence submitted by nearly 5,000
individuals documenting the problems with discrimination persons with
disabilities face daily \-- often at the hands of state and local
governments. See 2 Staff of the House Comm. on Educ. and Labor, 101st
Cong., 2d Sess., [Legis. Hist. of Pub. L. No. 101-336: The Americans
with Disabilities Act]{.underline} 1040 (Comm. Print 1990) ([Leg.
Hist.]{.underline}).[^8] Congress also considered several reports and
surveys. See S. Rep. No. 116, [supra]{.underline}, at 6; H.R. Rep. No.
485, [supra]{.underline}, Pt. 2, at 28; Task Force Report 16.[^9]

**2. Congress Amassed Voluminous Evidence Of Historic And Enduring
Discrimination And Deprivation Of Fundamental Rights By States**

**a. [Historic Discrimination]{.underline}:** The "propriety of any § 5
legislation 'must be judged with reference to the historical experience
. . . it reflects.'" [Florida Prepaid Postsecondary Educ. Expense
Bd.]{.underline} v. [College Sav. Bank]{.underline}, 527 U.S. 627, 640
(1999) (quoting [Flores]{.underline}, 521 U.S. at 525). While defendants
ignore it, Congress and two Justices of the Supreme Court have also
acknowledged the Nation's "history of unfair and often grotesque
mistreatment'" of persons with disabilities. [Cleburne]{.underline}, 473
U.S. at 454 (Stevens, J., concurring); see also [Olmstead]{.underline}
v. [L.C.]{.underline}, 527 U.S. 581, 608 (1999) (Kennedy, J.,
concurring) ("\[O\]f course, persons with mental disabilities have been
subject to historic mistreatment, indifference, and hostility.");
[Alexander]{.underline} v. [Choate]{.underline}, 469 U.S. 287, 295 n.12
(1985) (\"well-cataloged instances of invidious discrimination against
the handicapped do exist\").

From the 1920s to the 1960s, the eugenics movement labeled persons with
mental and physical disabilities as "sub-human creatures" and "waste
products" responsible for poverty and crime. [Id]{.underline}. at 20.
Every single State, by law, provided for the segregation of persons with
mental disabilities and, frequently, epilepsy, and excluded them from
public schools and other state services and privileges of
citizenship.^1^[^10] States also fueled the fear and isolation of
persons with disabilities by requiring public officials and parents,
sometimes at risk of criminal prosecution, to report and segregate into
institutions the "feebleminded."^1^[^11]

Almost every State accompanied forced isolation with compulsory
sterilization and prohibitions of marriage. See [Buck]{.underline} v.
[Bell]{.underline}, 274 U.S. 200, 207 (1927) ("It is better for all the
world, if \* \* \* society can prevent those who are manifestly unfit
from continuing their kind. \* \* \* Three generations of imbeciles are
enough."); 3 [Leg. Hist.]{.underline} 2242 (James Ellis); M. Burgdorf &
R. Burgdorf, [A History of Unequal Treatment]{.underline} ([Unequal
Treatment]{.underline}), 15 Santa Clara Lawyer 855, 887-888 (1975).
Children with mental disabilities "were excluded completely from any
form of public education." [Board of Educ.]{.underline} v.
[Rowley]{.underline}, 458 U.S. 176, 191 (1982). Numerous States also
restricted the rights of physically disabled people to enter into
contracts, [Spectrum]{.underline} 40, while a number of large cities
enacted "ugly laws," which prohibited the physically disabled from
appearing in public. Chicago's law provided:

> No person who is diseased, maimed, mutilated or in any way deformed so
> as to be an unsightly or disgusting object or improper person to be
> allowed in or on the public ways or other public places in this city,
> shall therein or thereon expose himself to public view, under a
> penalty of not less than one dollar nor more than fifty dollars for
> each offense.

[Unequal Treatment]{.underline} 863 (quoting ordinance). Such laws were
enforced as recently as 1974. [Id]{.underline}. at 864.^1^[^12]

**b. [Enduring Discrimination and Deprivation of Fundamental
Rights]{.underline}:** " Congress specifically found that "our society
is still infected by the ancient, now almost subconscious assumption
that people with disabilities are less than fully human and therefore
are not fully eligible for the opportunities, services, and support
systems which are available to other people as a matter of right. The
result is massive, society-wide discrimination." S. Rep. No. 116,
[supra]{.underline}, at 8-9.^1^[^13]

That is because the process of changing discriminatory laws, policies,
practices, and stereotypical conceptions and prejudices did not even
[begin]{.underline} until the 1970s and 1980s. Even then, "out-dated
statutes \[were\] still on the books, and irrational fears or ignorance,
[traceable to the prolonged social and cultural isolation]{.underline}"
of those with disabilities "continue to stymie recognition of the\[ir\]
dignity and individuality." [Cleburne]{.underline}, 473 U.S. at 467
(Marshall, J., concurring) (emphasis added). The involuntary
sterilization of the disabled is not distant history; it continued into
the 1970s, and occasionally even into the 1980s \-- well within the
lifetime of many current governmental decision makers. P. Reilly, [The
Surgical Solution]{.underline} 2, 148 (1991); National Public Radio,
"Look Back at Oregon's History of Sterilizing Residents of State
Institutions" (Dec. 2, 2002). As recently as 1983, fifteen States
continued to have compulsory sterilization laws on the books.
[Spectrum]{.underline} 37; see also [Stump]{.underline} v.
[Sparkman]{.underline}, 435 U.S. 349, 351 (1978) (Indiana judge ordered
the sterilization of a "somewhat retarded" 15 year old girl); Reilly,
[supra]{.underline}, at 148-160.

Until the late 1970s, "peonage was a common practice in \[Oregon\]
institutions." Gov. J. Kitzhaber, "Proclamation of Human Rights Day, and
Apology for Oregon's Forced Sterilization" (Dec. 2, 2002). As of 1979,
"most States still categorically disqualified 'idiots' from voting,
without regard to individual capacity and with discretion to exclude
left in the hands of low-level election officials."
[Cleburne]{.underline}, 473 U.S. at 464 (Marshall, J., concurring). New
Mexico recently reaffirmed its unqualified exclusion of "idiots \[and\]
insane persons" from voting. New Mexico, Official 2002 General Election
Results by Office (Dec. 2002).

Based on the evidence it amassed, Congress found, as a matter of present
reality and historical fact, that persons with disabilities have been
and are subjected to "widespread and persisting deprivation of \[their\]
constitutional rights." [Florida Prepaid]{.underline}, 527 U.S. at 645
(citation omitted); see also 42 U.S.C. 12101(a)(2) and (a)(3). In
particular, Congress discerned a substantial risk that persons with
disabilities will be unconstitutionally denied an equal opportunity to
obtain vital services and to exercise fundamental rights, and will be
subjected to unconstitutional treatment in the form of arbitrary or
irrational distinctions and exclusions, and disparity in treatment as
compared to other similarly situated groups, [Garrett]{.underline}, 531
U.S. at 366 n.4.

**(i) Education:** "\[E\]ducation is perhaps the most important function
of state and local governments" because "it is doubtful that any child
may reasonably be expected to succeed in life if he is denied the
opportunity of an education." [Brown]{.underline} v. [Board of
Educ.]{.underline}, 347 U.S. 483, 493 (1954). Accordingly, where the
State provides a public education, that right "must be made available to
all on equal terms." [Ibid]{.underline}. But Congress heard that
irrational prejudices, fears, ignorance, and animus still operate to
deny persons with disabilities an equal opportunity for public
education. As recently as 1975, approximately 1 million disabled
students were "excluded entirely from the public school system." 42
U.S.C. 1400(c)(2)(C). A quadriplegic woman with cerebral palsy and a
high intellect, who scored well in school, was branded "retarded" by
educators, denied placement in a regular school setting, and placed with
emotionally disturbed children, where she was told she was "not college
material." VT 1635. Other school districts also simply labeled as
mentally retarded a blind child and a child with cerebral palsy. NB.
1031; AK 38 (child with cerebral palsy subsequently obtained a Masters
Degree). "When I was 5," another witness testified, "my mother proudly
pushed my wheelchair to our local public school, where I was promptly
refused admission because the principal ruled that I was a fire hazard."
S. Rep. No. 116, [supra]{.underline}, at 7.^1^[^14]

State institutions of higher education acted on the same stereotypes and
prejudices. Indeed, the "higher one goes on the education scale, the
lower the proportion of handicapped people one finds."
[Spectrum]{.underline} 28; see also note 10, [supra]{.underline}. A
person with epilepsy was asked to leave a state college because her
seizures were "disrupt\[ive\]" and, officials said, created a risk of
liability. 2 [Leg. Hist.]{.underline} 1162 (Barbara Waters). A doctor
with multiple sclerosis was denied admission to a psychiatric residency
program because the state admissions committee "feared the negative
reactions of patients to his disability." [Id]{.underline}. at 1617
(Arlene Mayerson). Another witness explained that, "when I was first
injured, my college refused to readmit me" because "it would be
'disgusting' to my roommates to have to live with a woman with a
disability." WA 1733. Similarly, an Education student was denied a
student teaching assignment because administrators thought the students
would react badly to her appearance. OR 1384.^1^[^15]

For both good and ill, "the law can be a teacher."
[Garrett]{.underline}, 531 U.S. at 375 (Kennedy, J., concurring). As
with race discrimination, few governmental messages more profoundly
affect individuals and their communities than the message that
individuals with disabilities should be segregated in education:

> Segregation in education impacts on segregation throughout the
> community. Generations of citizens attend school with no opportunity
> to be a friend with persons with disabilities, to grow together, to
> develop an awareness of capabilities \-- all in the name of
> benevolence! Awareness deficits in our young people who become our
> community leaders and employers perpetuate the discrimination fostered
> in the segregated educational system.

MO 1007 (Pat Jones).

**(ii) Voting:** Because "the right to exercise the franchise in a free
and unimpaired manner is preservative of other basic civil and political
rights, any alleged infringement of the right of citizens to vote must
be carefully and meticulously scrutinized." [Reynolds]{.underline} v.
[Sims]{.underline}, 377 U.S. 533, 561-562 (1964). But Congress found
that persons with disabilities have been "relegated to a position of
political powerlessness," 42 U.S.C. 12101(a)(7), and continue to be
subjected to discrimination in voting, 42 U.S.C. 12101(a)(3). Congress
made that finding after hearing that "people with disabilities have been
turned away from the polling places after they have been registered to
vote because they did not [look]{.underline} competent." 2 [Leg.
Hist.]{.underline} 1220 (Nancy Husted-Jensen) (emphasis added). When one
witness turned in the registration card of a voter who has cerebral
palsy and is blind, the "clerk of the board of canvassers looked aghast
\* \* \* and said to me, 'Is that person competent? Look at that
signature," and then invented a reason to reject the registration.
[Id]{.underline}. at 1219. A deaf voter was told that "you still have to
be able to use your voice" to vote. [Equal Access to Voting for Elderly
and Disabled Persons: Hearings Before the Task Force on Elections of the
House Comm. on House Admin.]{.underline}, 98th Cong., 1st Sess. 94
(1984) ([Equal Voting Hearings]{.underline}).^1^[^16] The legislative
record also documented that many persons with disabilities "cannot
exercise one of your most basic rights as an American" because polling
places or voting machines are inaccessible. S. Rep. No. 116,
[supra]{.underline}, at 12. As a consequence, persons with disabilities
"were forced to vote by absentee ballot before key debates by the
candidates were held." [Ibid]{.underline}.; see also [May 1989
Hearings]{.underline} 76 (Ill. Att'y Gen. Hartigan) (same). Voting by
absentee ballot also "deprives the disabled voter of an option available
to other absentee voters, the right to change their vote by appearing
personally at the polls on election day." 2 [Leg. Hist.]{.underline}
1745 (Nanette Bowling).^1^[^17] "How can disabled people have clout with
our elected officials when they are aware that many of us are prevented
from voting?" ARK 155.

**(iii) Access to the courts:** The Fourteenth Amendment protects the
rights of civil litigants, criminal defendants, and members of the
public to have access to the courts. See, [e.g.]{.underline}, [Richmond
Newspapers, Inc.]{.underline} v. [Virginia]{.underline}, 448 U.S. 555
(1980). Yet, Congress learned that "\[t\]he courthouse door is still
closed to Americans with disabilities" \-- literally. 2 [Leg.
Hist.]{.underline} 936 (Sen. Harkin).

I went to the courtroom one day and \* \* \* I could not get into the
building because there were about 500 steps to get in there. Then I
called for the security guard to help me, who \* \* \* told me there was
an entrance at the back door for the handicapped people. \* \* \* I went
to the back door and there were three more stairs for me to get over to
be able to ring a bell to announce my arrival so that somebody would
come and open the door and maybe let me in.\* \* \* This is the court
system that is supposed to give me a fair hearing. It took me 2 hours to
get in. \* \* \* And when \[the judge\] finally saw me in the courtroom,
he could not look at me because of my wheelchair. \* \* \* The employees
of the courtroom came back to me and told me, "You are not the norm. You
are not the normal person we see every day."

[Id]{.underline}. at 1071 (Emeka Nwojke). Such differential treatment
affects not only the ability to get into the courthouse, but also the
ability to be heard and participate effectively and meaningfully in
judicial proceedings.^1^[^18]

**(iv) Access to government officials and proceedings:** "The very idea
of a government, republican in form, implies a right on the part of its
citizens to \* \* \* petition for a redress of grievances," [United
States]{.underline} v. [Cruikshank]{.underline}, 92 U.S. 542, 552-554
(1875), and that right cannot be denied to an entire class of citizens
without compelling justification, [NAACP]{.underline} v. [Claiborne
Hardware Co.]{.underline}, 458 U.S. 886 (1982). State governments must
"act as neutral entities, ready to take instruction and to enact laws
when their citizens so demand." [Garrett]{.underline}, 531 U.S. at 375
(Kennedy, J., concurring). But government cannot take instruction from
those whom it cannot see or hear. The Illinois Attorney General
testified that he "had innumerable complaints regarding lack of access
to public services \-- people unable to meet with their elected
representatives because their district office buildings were not
accessible or unable to attend public meetings because they are held in
an inaccessible building," and that "individuals who are deaf or hearing
impaired call\[\] our office for assistance because the arm of
government they need to reach is not accessible to them." [May 1989
Hearings]{.underline} 488, 491. Another individual, "who has been in a
wheelchair for 12 years, tried three times last year to testify before
state legislative committees. And three times, he was thwarted by a
narrow set of Statehouse stairs, the only route to the small hearing
room." IN 626. Access to other important government buildings and
officials depended upon the individual's willingness to crawl or be
carried.^1^[^19]

**(v) Law Enforcement:** Persons with disabilities have also been
victimized in their dealings with law enforcement, in violation of their
Fourteenth Amendment right to due process and protection from
unreasonable searches and seizures. When police in Kentucky learned that
a man they arrested had AIDS, "\[i\]nstead of putting the man in jail,
the officers locked him inside his car to spend the night." 2 [Leg.
Hist.]{.underline} 1005 (Belinda Mason). Police refused to accept a rape
complaint from a blind woman because she could not make a visual
identification. NM 1081. A person in a wheelchair was given a ticket and
six-months' probation for obstructing traffic on the street, even though
the person could not use the sidewalk because it lacked curb cuts. VA
1684. Task Force Chairman Justin Dart testified, moreover, that persons
with hearing impairments "have been arrested and held in jail over night
without ever knowing their rights nor what they are being held for." 2
[Leg. Hist.]{.underline} 1331. A parole agent "sent a man who uses a
wheelchair back to prison since he did not show up for his appointments
even though \* \* \* he could not make the appointments because he was
unable to get accessible transportation." [Cal. Report]{.underline}
103.^2^[^20]

**(vi) Child Custody:** The Supreme Court has long recognized that the
Constitution protects and respects the sanctity of the parent-child
relationship. See, [e.g.]{.underline}, [Troxel]{.underline} v.
[Granville]{.underline}, 530 U.S. 57 (2000); [Stanley]{.underline} v.
[Illinois]{.underline}, 405 U.S. 645 (1972). In addition, the Due
Process Clause requires States to afford individuals with disabilities
fair child custody proceedings, including the opportunity to be heard
"at a meaningful time and in a meaningful manner."
[Goldberg]{.underline} v. [Kelly]{.underline}, 397 U.S. 254, 267 (1970)
(citation and quotation marks omitted). But the Task Force Chairman
testified that "clients whose children have been taken away from them
a\[re\] told to get parent information, but have no place to go because
the services are not accessible. What chance do they ever have to get
their children back?" 2 [Leg. Hist.]{.underline} 1331 (Justin Dart).
Another government agency refused to authorize a couple's adoption of a
child solely because the woman had muscular dystrophy. MA 829.^2^[^21]

**(vii) Institutionalization:** The Constitution protects individuals
with disabilities from unjustified institutionalization and from unduly
severe treatment while institutionalized. [Youngberg]{.underline} v.
[Romeo]{.underline}, 457 U.S. 307, 315, 322 (1982). Yet unconstitutional
denials of appropriate treatment and unreasonable institutionalization
of persons in state mental hospitals were commonplace. See 2 [Leg.
Hist.]{.underline} 1203 (Lelia Batten) (state law ineffective; state
hospitals are "notorious for using medication for controlling the
behavior of clients and not for treatment alone. Seclusion rooms and
restraints are used to punish clients."); [id]{.underline}. at 1262-1263
(Eleanor C. Blake) (detailing the "minimal, custodial, neglectful,
abusive" care received at state mental hospital, and willful
indifference resulting in rape); [Spectrum]{.underline} 34-35.^2^[^22]

Indeed, in the years immediately preceding enactment of the Disabilities
Act, the Department of Justice found unconstitutional treatment of
individuals with disabilities in state institutions for the mentally
retarded or mentally ill in more than half of the States. One facility
forced mentally retarded residents to inhale ammonia fumes as a form of
punishment. See Notice of Findings Regarding Los Lunas Hosp. & Training
Sch. 2. Residents in other facilities lacked adequate food, clothing and
sanitation. Many state facilities failed to provide basic safety to
individuals with mental illness or mental retardation, resulting in
serious physical injuries, sexual assaults, and deaths. See Appendix B,
[infra]{.underline}.

**(viii) Zoning:** Congress knew that [Cleburne]{.underline}, where the
Supreme Court found unconstitutional discrimination in a zoning decision
based on irrational fears and stereotypes, was not an isolated incident.
In Wyoming, a zoning board declined to authorize a group home because of
"local residents' unfounded fears that the residents would be a danger
to the children in a nearby school." WY 1781. In New Jersey, a group
home for those who had suffered head injuries was barred because the
public perceived such persons as "totally incompetent, sexual deviants,
and that they needed 'room to roam.' \* \* \* Officially, the
application was turned down due to lack of parking spaces, even though
it was early established that the residents would not have automobiles."
NJ 1068.^2^[^23]

**(ix) Licensing:** The legislative record likewise includes evidence of
discriminatory treatment in licensing. The House Report discussed a
woman who was denied a teaching credential, not because of her
substantive teaching skills, but because of her paralysis. H.R. Rep. No.
485, [supra]{.underline}, Pt. 2, at 29. See also 2 [Leg
Hist.]{.underline} 1611 n.9 (Arlene Mayerson) (teaching license denied
"on the grounds that being confined to a wheelchair as a result of
polio, she was physically and medically unsuited for teaching"); WY 1786
(individual unable to get a marriage license because the county
courthouse was not wheelchair accessible).^2^[^24]

**(x) Public Transportation:** Individuals reported discriminatory
treatment on public transportation that lacked any rational basis and
that "made no sense in light of how the \[government\] treated other
groups similarly situated in relevant respects." [Garrett]{.underline},
531 U.S. at 366 n.4. One student testified:

> Some of the drivers are very rude and get mad if I want to take the
> bus. Can you believe that? I work and part of my taxes pay for public
> buses and then they get mad just because I am using a wheelchair.\* \*
> \* It is hard for people to feel good about themselves if they have to
> crawl up the stairs of a bus, or if the driver passes by without
> stopping.

2 [Leg. Hist.]{.underline} 993 (Jade Calegory); MA 831 ("Blacks wanted
to ride in the front of the bus. Disabled people just want\[\] on."). A
high-level Connecticut transportation official responded to requests for
accessibility by asking "Why can't all the handicapped people live in
one place and work in one place? It would make it easier for us." 2
[Leg. Hist.]{.underline} 1085 (Edith Harris).^2^[^25]

**(xi) Prison conditions:** The Eighth Amendment protects inmates with
disabilities against treatment that is deliberately indifferent to their
serious medical needs and safety or imposes wanton suffering.
[Farmer]{.underline} v. [Brennan]{.underline}, 511 U.S. 825 (1994);
[Rhodes]{.underline} v. [Chapman]{.underline}, 452 U.S. 337, 347 (1981).
But Congress heard that "their jailers rational\[ize\] taking away their
wheelchairs as a form of punishment as if that is different than
punishing prisoners by breaking their legs." 2 [Leg. Hist.]{.underline}
1190 (Cindy Miller). Another prison guard repeatedly assaulted
paraplegic inmates with a knife, forced them to sit in their own feces,
and taunted them with remarks like "crippled bastard" and "\[you\]
should be dead." [Parrish]{.underline} v. [Johnson]{.underline}, 800
F.2d 600, 603, 605 (6th Cir. 1986).^2^[^26]

**(xii) Other Public Services:** The scope of the testimony offered to
Congress regarding unconstitutional treatment swept so broadly, touching
virtually every aspect of individuals' encounters with their government,
as to defy isolating the problem into select categories of state action.
Services and programs as varied as the operation of public
libraries,^2^[^27] public swimming pools and park programs,^2^[^28]
homeless shelters,^2^[^29] and benefit programs^3^[^30] exposed the
discriminatory attitudes of officials.

**3. Other Evidence Confirms the Problem**

In [Garrett]{.underline}, Justice Kennedy suggested that, if a
widespread problem of disability discrimination existed, "one would have
expected to find \* \* \* extensive litigation and discussion of the
constitutional violations." 531 U.S. at 968. Appendix A to this brief
provides a non-exhaustive list of cases in which courts have found
discrimination and the deprivation of fundamental rights on the basis of
disability. Many of the cases specifically found constitutional
violations. In others, the facts support that conclusion, but the
existence of statutory relief allowed the court to avoid the
constitutional question. Federal efforts to enforce the rights of
individuals with disabilities offer still more evidence. See [South
Carolina]{.underline}, 383 U.S. at 312 (considering evidence collected
in Department of Justice investigations). In public reports, the
Department of Justice has either litigated or settled dozens of cases to
ensure access to the courts and other government buildings, reasonable
treatment by law enforcement officials, and protection against other
forms of discrimination that implicate important constitutional
rights.^3^[^31] In addition, the Department of Justice has found
unconstitutional treatment of individuals with disabilities in
institutions or prisons in more than 30 States. See Appendix B.

**4. Special Significance of Discrimination in Government Services.**

The foregoing record of extensive state and local discrimination in the
provision of government services provides a solid predicate for exercise
of Congress's Section 5 enforcement power, for three reasons.
[First]{.underline}, in [Garrett]{.underline}, the Supreme Court held
that evidence of "hardheaded\[\] \-- and perhaps hardhearted\[\]" \--
employment discrimination based on disability did not violate the
Constitution if it could be justified by "any reasonably conceivable
state of facts that could provide a rational basis for the
classification." 531 U.S. at 367-368. The constitutional balance under
Title II, however, is quite different. Much of the identified state
conduct interferes with or threatens the fundamental rights of
individuals with disabilities, or occurs where the right to equal
protection intersects with other constitutional rights, see [Employment
Div.]{.underline} v. [Smith]{.underline}, 494 U.S. 872, 881 (1990). Such
violations are subject to more intense scrutiny and cannot be justified
by any conceivable rationale. A particular class of individuals cannot
be excluded from voting, participating in court proceedings, accessing
public meetings and services, or raising their children based on nothing
more than administrative convenience. Rather, such infringements are
unconstitutional "unless shown to be necessary to promote a compelling
governmental interest." [Shapiro]{.underline} v. [Thompson]{.underline},
394 U.S. 618, 634 (1969); see also [Troxel]{.underline}, 530 U.S. at 65;
[Clark]{.underline} v. [Jeter]{.underline}, 486 U.S. 456, 461 (1988).

[Second]{.underline}, much of the identified conduct fails rational
basis scrutiny. Even that low constitutional threshold cannot justify
beating a deaf student for failure to follow spoken instructions,
refusing to let individuals with disabilities on buses, excluding a
paralyzed veteran from a public swimming pool, or denying a disabled
student a college education either because "it would be 'disgusting' to
\[her\] roommates to have to live with a woman with a disability," or
because of groundless stereotypes that blind people cannot teach,
provide competent rehabilitation counseling, or succeed in a music
course. The Supreme Court reaffirmed in [Garrett]{.underline} that
"'mere negative attitudes, or fear,'" alone cannot justify disparate
treatment of those with disabilities. 531 U.S. at 367.

Moreover, a purported rational basis for treatment of the disabled will
fail if the State does not accord the same treatment to other groups
similarly situated. [Garrett]{.underline}, 531 U.S. at 366 n.4;
[Cleburne]{.underline}, 473 U.S. at 447-450; [U.S. Dep't of Agriculture
v. Moreno]{.underline}, 413 U.S. 528, 534, 93 S.Ct. 2821, 2825-26, 37
L.Ed.2d 782 (1973). It accordingly is not enough that the State can
offer a rational basis \-- such as finances \-- for failing to offer
benefit information or services in handicap-accessible formats if the
State is already accommodating the special communication needs of other
constituents by offering such information in, for example, Spanish.
Police may not refuse to take complaints from blind individuals, while
taking them from victims who were blindfolded or unconscious. Moreover,
many of the instances of discriminatory treatment reported to Congress
arose in contexts, like education and zoning, where state actors already
make accommodations for other groups, but are selectively resistant to
doing so for those with disabilities.

[Third]{.underline}, based on the record before it, Congress could
reasonably conclude that the aggregate effect of consistently excluding
individuals with disabilities from a broad range of important government
services caused a constitutional problem that is greater than the sum of
its parts. The consistent distribution of benefits and services in a way
that maintains a permanent subclass of citizens is inimical to the core
purposes of the Equal Protection Clause. See [Hooper]{.underline} v.
[Bernalillo County Assessor]{.underline}, 472 U.S. 612, 623 (1985);
[Plyler]{.underline} v. [Doe]{.underline}, 457 U.S. 202, 213 (1982).
States cannot balance their budgets or allocate their resources in a
manner that "divide\[s\] citizens into \* \* \* permanent classes" and
apportions "rights, benefits and services according to" their class.
[Zobel]{.underline} v. [Williams]{.underline}, 457 U.S. 55, 64 (1982).

**5. State Laws Provided Insufficient Protection**

Defendants point out that prior to the enactment of the ADA, some states
had enacted laws addressing disability discrimination at the state
level. (Br. 6) Although defendants do not explain their point, perhaps
they mean that the existence of state legislation suggests that
discrimination at the state level has been addressed. If so, the
legislative record belies this argument. Evidence before Congress during
the hearings on the ADA demonstrated that state laws were "inadequate to
address the pervasive problems of discrimination that people with
disabilities are facing." S. Rep. No. 116, [supra]{.underline}, at 18;
see also [ibid]{.underline}. (section of report entitled "CURRENT
FEDERAL AND STATE LAWS ARE INADEQUATE"); H.R. Rep. No. 485,
[supra]{.underline}, Pt. 2, at 47 (same).^3^[^32]

State officials themselves broadly agreed with that assessment. The 50
State Governors' Committees "report\[ed\] that existing State laws do
not adequately counter \* \* \* discrimination." S. Rep. No. 116,
[supra]{.underline}, at 18; H.R. Rep. No. 485, [supra]{.underline}, Pt.
2, at 47. California itself noted that "gaps" and "contradictions" in
state law justified enactment of the Disabilities Act. [Cal.
Report]{.underline} 22-23. The Illinois Attorney General testified that
"\[p\]eople with disabilities should not have to win these rights on a
State-by-State basis," and that "\[i\]t is long past time \* \* \*
\[for\] a national policy that puts persons with disabilities on equal
footing with other Americans." [May 1989 Hearings]{.underline}
77.^3^[^33]

In addition, defendants exaggerate the coverage of state laws. See
generally J. Flaccus, [Handicap Discrimination Legislation: With Such
Inadequate Coverage at the Federal Level, Can State Legislation Be of
any Help?]{.underline}, 40 Ark. L. Rev. 261 (1986) (detailing gaps in
coverage of state laws). Prior to 1990, nearly half of the States did
not protect persons with mental illness and/or mental disabilities. See
Flaccus, [supra]{.underline}, at 278-280. New Hampshire excluded
disabilities caused by illness, N.H. Rev. Stat. Ann. § 354-A:3(XIII)
(1984), while Arizona excluded disabilities which were first manifested
after the age of 18, Ariz. Rev. Stat. § 36-551(11)(b) (1986). Flaccus,
[supra]{.underline}, at 285. Few States protected against discrimination
based on either a perceived disability or a history of illness such as
cancer. See B. Hoffman, [Employment Discrimination Based on Cancer
History]{.underline}, 1986 Temple L. Q. 1 (1986). Many States failed to
provide for private rights of action and compensatory damages,
effectively leaving victims of discrimination without enforceable
remedies. [Id]{.underline}. at App. B; Flaccus, [supra]{.underline}, at
300-310, 317-321.^3^[^34]

Furthermore, defendants' assertions concerning the effectiveness of
those laws cannot supplant Congress's findings based on the first-hand
testimony of witness after witness about the instances of discrimination
they faced and the ineffectiveness of state laws. Although there may be
specific contexts, such as Section 5 legislation designed to remedy
violations of the Takings Clause or the privilege against
self-incrimination, in which the lack of a state remedy may be relevant
to the existence of a constitutional violation, cf. [Florida
Prepaid]{.underline}, 527 U.S. at 642-643, the [possibility]{.underline}
of a state remedy for discrimination does not make the underlying
conduct constitutional. Just as state laws against race discrimination
have neither eradicated the problem nor undermined the basis for
subjecting state employers to federal prohibitions,^3^[^35] Congress was
equally justified in concluding that state laws against disability
discrimination had generally been ineffective in combating the lingering
effects of prior official discrimination and exclusionary laws and
policies and, more importantly, in changing the behavior of individual
state actors.

**C. The Americans With Disabilities Act Is Reasonably Tailored To
Remedying And Preventing Unconstitutional Discrimination Against Persons
With Disabilities**

While Congress "must tailor its legislative scheme to remedying or
preventing" the unconstitutional conduct it has identified, [Florida
Prepaid]{.underline}, 527 U.S. at 639, "the line between measures that
remedy or prevent unconstitutional actions and measures that make a
substantive change in the governing law is not easy to discern, and
Congress must have wide latitude in determining where it lies,"
[Flores]{.underline}, 521 U.S. at 519-520. Thus, the relevant inquiry is
not whether Title II "prohibit\[s\] a somewhat broader swath of
conduct," [Garrett]{.underline}, 531 U.S. at 365, than would the courts.
"Congress is not limited to mere legislative repetition of this Court's
constitutional jurisprudence." [Garrett]{.underline}, 531 U.S. at 365.
Rather, the question is whether, in light of the scope of the problem
identified by Congress, the enactment "is so out of proportion to the
supposed remedial or preventive object that it cannot be understood as
responsive to, or designed to prevent, unconstitutional behavior."
[Kimel]{.underline}, 528 U.S. at 86 (quoting [Flores]{.underline}, 521
U.S. at 532). Title II is not.

**1. Title II's Terms are Tailored to the Constitutional Problems it
Remedies**

Because much of Title II targets only discrimination that threatens
fundamental rights it therefore mostly targets conduct outlawed by the
Constitution itself. As applied to discrimination in voting, child
custody proceedings, criminal cases, institutionalization, conditions of
confinement, interactions with law enforcement, judicial proceedings,
access to public officials and offices, and other areas implicating
fundamental rights, Title II tracks the Fourteenth Amendment when it
prevents the disparate deprivation of those rights for invidious
reasons.

Furthermore, Title II targets some additional discrimination, and, in so
doing, ensures that the government's articulated rationale for
differential treatment does not mask impermissible animus and does not
result in the unlawful differential treatment of similarly situated
groups. The States retain their discretion to exclude persons from
programs, services, or benefits for any lawful reason unconnected with
their disability or for no reason at all. The Disabilities Act does not
require preferences and permits the denial of benefits or services if a
person cannot "meet\[\] the essential eligibility requirements" of the
governmental program or service, 42 U.S.C. 12131(2). But once an
individual proves that he can meet all the essential eligibility
requirements of a program or service, especially those programs and
services that implicate fundamental rights, the government's interest in
excluding that individual solely "by reason of such disability," 42
U.S.C. 12132, is both minimal and, in light of history, constitutionally
circumscribed. At the same time, permitting the States to retain and
enforce their essential eligibility requirements protects their
legitimate interests in selecting and structuring governmental
activities. The Disabilities Act thus balances a State's legitimate
operational interests against the right of a person with a disability to
be judged "by his or her own merit and essential qualities."
[Rice]{.underline} v. [Cayetano]{.underline}, 528 U.S. 495, 496 (2000).

As defendants note (Br.8), the Disabilities Act requires \"reasonable
modifications\" in public services, 42 U.S.C. 12131(2). That
requirement, however, is precisely tailored to the unique features of
disability discrimination in two ways. [First]{.underline}, given the
history of separation and isolation and the resulting entrenched
stereotypes, fear, prejudices, and ignorance about persons with
disabilities, Congress reasonably determined that a simple ban on overt
discrimination would be insufficient. Therefore, the Disabilities Act
both prevents difficult-to-prove discrimination and affirmatively
promotes the integration of individuals with disabilities in order to
remedy past unconstitutional conduct and to prevent future
discrimination.

Congress further concluded that the demonstrated refusal of state and
local governments to undertake reasonable efforts to accommodate and
integrate persons with disabilities within their programs, services, and
operations would freeze in place the effects of those governments' prior
official exclusion and isolation of individuals with disabilities,
creating a self-perpetuating spiral of isolated, stigma, ill treatment,
neglect, and degradation. See [Gaston County]{.underline},
[supra]{.underline} (constitutionally administered literacy test banned
because it perpetuates the effects of past discrimination). Congress
also concluded that, by reducing stereotypes and misconceptions,
integration reduces the likelihood that constitutional violations will
recur. Cf. [Olmstead]{.underline}, 527 U.S. at 600 (isolation
"perpetuates unwarranted assumptions that persons so isolated are
incapable or unworthy of participating in community life"). Moreover,
given the record of discrimination and unconstitutional treatment of the
disabled, Congress reasonably concluded that the failure to make
reasonable accommodations to the rigid enforcement of seemingly neutral
criteria can often mask invidious, but difficult to prove,
discrimination. Congress' Section 5 power includes the ability to ensure
that constitutional violations are not left unremedied because of
difficulties of proof. See, [e.g.]{.underline}, [South
Carolina]{.underline}, 383 U.S. at 314-315. [Second]{.underline}, the
Constitution itself already requires individualized consideration and
modification of practices or programs, when necessary to avoid
infringing on fundamental rights.^3^[^36] Beyond that, States may not
justify infringement on fundamental rights by pointing to the
administrative convenience or cost savings achieved by maintaining
barriers to the enjoyment of those rights.^3^[^37]

The statute, moreover, requires modifications only where "reasonable,"
42 U.S.C. 12131(2). Governments need not make modifications that "impose
an undue hardship" or require "fundamental alterations in the nature of
a service, program, or activity," in light of their nature or cost,
agency resources, and the operational practices and structure of the
program. 42 U.S.C. 12111(10), 12112(b)(5)(A); 28 C.F.R. 35.130(b)(7),
35.150(a)(3), 35.164; [Olmstead]{.underline}, 527 U.S. at 606 n.16.
Furthermore, based on the consistent testimony of witnesses and expert
studies, Congress determined that the vast majority of modifications
entail little or no cost. One local government official stressed that
"\[t\]his bill will not impose great hardships on our county
governments" because "the majority of accommodations for employees with
disabilities are less than \$50\" and "\[t\]he cost of making new or
renovated structures accessible is less than 1 percent of the total cost
of construction." 2 [Leg. Hist.]{.underline} 1443 (Nikki Van Hightower,
Treasurer, Harris Co., Tex.).^3^[^38]

Title II, then, goes further than the Constitution itself only to the
extent that some disability discrimination may have no impact on
fundamental rights and may be rational for constitutional purposes, but
still be unlawful under the requirements of the Disabilities Act. That
margin of statutory protection does not exceed Congress' authority for
two reasons. [First]{.underline}, like Title VII on which it was
modeled, that statutory protection is necessary to enforce the Supreme
Court's constitutional standard by reaching unconstitutional conduct
that would otherwise escape detection in court and to deter future
constitutional violations.

[Second]{.underline}, "\[a\] proper remedy for an unconstitutional
exclusion \* \* \* aims to eliminate so far as possible the
discriminatory effects of the past and to bar like discrimination in the
future." [United States]{.underline} v. [Virginia]{.underline}, 518 U.S.
515, 547 (1996). Section 5 thus empowers Congress to do more than simply
prohibit the creation of new barriers to equality; subject to
proportionality and congruence, it can require States to tear down the
walls they erected during decades of discrimination and exclusion. See
[id]{.underline}. at 550 n.19 (Equal Protection Clause itself can
require modification of facilities and program to ensure equal access).
Title II's accommodation requirements eliminate the effects of past
discrimination by ensuring that persons previously invisible to program
and building designers are now considered part of the government's
service constituency. "Just as it is unthinkable to design a building
with a bathroom only for use by men, it ought to be just as unacceptable
to design a building that can only be used by able-bodied persons. It is
exclusive [designs]{.underline}, and not any inevitable consequence of a
disability that results in the isolation and segregation of persons with
disabilities in our society." 3 [Leg. Hist.]{.underline} 1987 n.4 (Laura
Cooper).^3^[^39]

**2. Title II Is As Broad As Necessary**

Defendants suggest that Title II is too broad. (Br. 9-10). The operative
question, however, is not whether Title II is broad, but whether it is
broader than necessary. It is not. Congress found that the history of
unconstitutional treatment and the risk of future discrimination found
by Congress pertain to all aspects of governmental operations. It
determined that only a comprehensive effort to integrate persons with
disabilities would end the cycle of isolation, segregation, and
second-class citizenship, and deter further discrimination. Integration
in education alone, for example, would not suffice if there were not
going to be jobs and professional licenses for those who received the
education. Integration in employment and licensing would not suffice if
persons with disabilities lacked transportation. Integration in
transportation is insufficient unless persons with disabilities can get
into the facilities to which they are traveling. Ending unnecessary
institutionalization is of little gain if neither government services
nor the social activities of public life (libraries, museums, parks, and
recreational services) are accessible to bring persons with disabilities
into the life of the community. And none of those efforts would suffice
if persons with disabilities continued to lack equivalent access to
government officials, courthouses, and polling places. In short,
Congress chose a comprehensive remedy because it confronted an
all-encompassing, inter-connected problem. To do less would be as
ineffectual as "throwing an 11-foot rope to a drowning man 20 feet
offshore and then proclaiming you are going more than halfway," S. Rep.
No. 116, [supra]{.underline}, at 13.

**CONCLUSION**

For the foregoing reasons, and based upon the entire record herein, the
United States respectfully submits that this Court should deny
defendants' second motion for summary judgment with regard to whether
the Eleventh Amendment bars plaintiff's claims under Title II of the
ADA.

> Respectfully submitted,
>
> \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
>
> John Wodatch, Chief
>
> Philip L. Breen, Special Legal Counsel
>
> Allison Nichol, Deputy Chief
>
> Laura F. Einstein
>
> Disability Rights Section
>
> Civil Rights Division
>
> U.S. Department of Justice
>
> 950 Pennsylvania Avenue NW. - NYA
>
> Washington, DC 20530
>
> \(202\) 514-9583 (Einstein)
>
> AMY REYNOLDS HAY
>
> Assistant United States Attorney
>
> Western District of Pennsylvania
>
> 633 U.S. Post Office and Courthouse
>
> Pittsburgh, PA 15219
>
> \(412\) 644-3500
>
> PA ID No.36623

**[APPENDIX A]{.underline}**

**Cases Evidencing Unconstitutional Treatment of Individuals with
Disabilities:**

[Foucha]{.underline} v. [Louisiana]{.underline}, 504 U.S. 71 (1992)
(Louisiana statute allowing continued confinement of the mentally ill,
who were acquitted of crimes by reason of insanity, resulted in
unconstitutional confinement, in violation of the Due Process Clause,
where the hospital review committee had reported no evidence of mental
illness and recommended conditional discharge); [City of
Cleburne]{.underline} v. [Cleburne Living Ctr.]{.underline}, 473 U.S.
432 (1985) (unconstitutional zoning discrimination);
[Youngberg]{.underline} v. [Romeo]{.underline}, 457 U.S. 307, 315, 322
(1982) (institutionalized persons have due process "right to adequate
food, shelter, clothing, and medical care," "safe conditions," and
freedom from unreasonable physical restraint, as well as to "such
training as may be reasonable in light of \[the resident's\] liberty
interests in safety and freedom from unreasonable restraints");
[O'Connor]{.underline} v. [Donaldson]{.underline}, 422 U.S. 563 (1975)
(unconstitutional confinement); [Delano-Pyle]{.underline} v. [Victoria
County]{.underline}, 302 F.3d 567, 575-576 (5th Cir. 2002) (affirming a
jury verdict that included evidence of a police officer giving a
sobriety test and [Miranda]{.underline} warnings to a deaf plaintiff who
could not understand him, and then arresting the plaintiff);
[Kiman]{.underline} v. [New Hampshire Dep't of Corrs.]{.underline}, 301
F.3d 13, 15-16 (disabled inmate stated Eighth Amendment claims for
denial of accommodations needed to protect his health and safety due to
his degenerative nerve disease), reh'g en banc granted, 310 F.3d 785
(1st Cir. 2002); [Popovich]{.underline} v. [Cuyahoga County Ct. of
Common Pleas]{.underline}, 276 F.3d 808 (6th Cir.) (en banc) (deaf
parent denied communication assistance in child custody proceeding),
cert. denied, 123 S. Ct. 72 (2002); [Armstrong]{.underline} v.
[Davis]{.underline}, 275 F.3d 849 (9th Cir. 2001) (failure to conduct
parole and parole revocation proceedings in a manner that disabled
inmates can understand and in which they can participate), cert. denied,
123 S. Ct 72 (2002); [Baird]{.underline} v. [Rose]{.underline}, 192 F.3d
462 (4th Cir. 1999) (seventh-grader suffering from clinical depression
prohibited from singing in school choir); [Key]{.underline} v.
[Grayson]{.underline}, 179 F.3d 996 (6th Cir. 1999) (deaf inmate denied
access to sex offender program required as precondition for parole),
cert. denied, 528 U.S. 1120 (2000); [Bradley]{.underline} v.
[Puckett]{.underline}, 157 F.3d 1022, 1025-1026 (5th Cir. 1998) (failure
for several months to provide means for amputee to bathe lead to
infection); [Innovative Health Sys., Inc.]{.underline}, v. [City of
White Plains]{.underline}, 117 F.3d 37, 49 (2d Cir. 1997) (building
permit denied for drug and alcohol treatment center "based on
stereotypes and unsupported fears"); [Koehl]{.underline} v.
[Dalsheim]{.underline}, 85 F.3d 86 (2d Cir. 1996) (Eighth Amendment
violated when inmate with serious vision problem denied glasses and
treatment); [Weeks]{.underline} v. [Chaboudy]{.underline}, 984 F.2d 185,
187 (6th Cir. 1993) (\"squalor in which \[prisoner\] was forced to live
as a result of being denied a wheelchair\" violated the Eighth
Amendment); [Thomas S.]{.underline} v. [Flaherty]{.underline}, 902 F.2d
250 (4th Cir.) (unconstitutional confinement when appropriate community
placement available), cert. denied, 498 U.S. 951 (1990);
[Chalk]{.underline} v. [United States Dist. Ct. Cent. Dist. of
Cal.]{.underline}, 840 F.2d 701 (9th Cir. 1988) (certified teacher
barred from teaching after diagnosis of AIDS); [LaFaut]{.underline} v.
[Smith]{.underline}, 834 F.2d 389 (4th Cir. 1987) (Powell, J.) (failure
to provide paraplegic inmate with an accessible toilet is cruel and
unusual punishment); [Parrish]{.underline} v. [Johnson]{.underline}, 800
F.2d 600, 603, 605 (6th Cir. 1986) (prison guard repeatedly assaulted
paraplegic inmates with a knife, forced them to sit in their own feces,
and taunted them with remarks like "crippled bastard" and "\[you\]
should be dead"); [Clark]{.underline} v. [Cohen]{.underline}, 794 F.2d
79 (3d Cir.) (unconstitutional confinement), cert. denied, 479 U.S. 962
(1986); [Miranda]{.underline} v. [Munoz]{.underline}, 770 F.2d 255, 259
(1st Cir. 1985) (failure to provide medications for epilepsy, which
caused prisoner\'s death, violated Eighth Amendment);
[Lynch]{.underline} v. [Baxley]{.underline}, 744 F.2d 1452 (11th Cir.
1984) (State subjected individuals awaiting civil commitment proceedings
to unconstitutional conditions of confinement in county jails);
[Pushkin]{.underline} v. [Regents of Univ. of Colo.]{.underline}, 658
F.2d 1372 (10th Cir. 1981) (doctor with multiple sclerosis
unconstitutionally denied residency out of concern about patients'
reactions); [Ferrell]{.underline} v. [Estelle]{.underline}, 568 F.2d
1128, 1133 (5th Cir.) (deaf habeas petitioner\'s \"rights were reduced
below the constitutional minimum\" because he could not understand his
trial), withdrawn due to death of petitioner, 573 F.2d 867 (1978);
[Gurmankin]{.underline} v. [Costanzo]{.underline}, 556 F.2d 184 (3d Cir.
1977) (holding unconstitutional an irrebuttable presumption that blind
teacher cannot instruct sighted students); [Wyatt]{.underline} v.
[Aderholt]{.underline}, 503 F.2d 1305 (5th Cir. 1974) (unconstitutional
conditions of confinement for the mentally ill); [McCray]{.underline} v.
[City of Dothan]{.underline}, 169 F. Supp.2d 1260, 1279-1280 (M.D. Ala.
2001) (police officer had \"not articulated [any]{.underline} specific
facts upon which suspicion reasonably could be founded\" other than
\"the communication gap between a deaf man and herself\");
[M.H.]{.underline} v. [Bristol Bd. of Educ.]{.underline}, 169 F. Supp.
2d 21, 24-25 (D. Conn. 2001) (possible substantive due process violation
where school employees spat water in disabled student\'s face and
restrained him so forcibly as to result in bruising); [Doe]{.underline}
v. [Rowe]{.underline}, 156 F. Supp. 2d 35 (D. Me. 2001)
(unconstitutional restriction on voting by those with mental
disabilities); [Project Life, Inc.]{.underline} v.
[Glendening]{.underline}, 139 F. Supp. 2d 703, 705 (D. Md. 2001)
(unlawful rejection of permit for drug treatment facility based on
"community prejudices"), aff'd, No. 01-1754, 2002 WL 2012545 (4th Cir.
2002); [Pathways Psychosocial]{.underline} v. [Town of
Leonardtown]{.underline}, 133 F. Supp. 2d 772, 791-792 (D. Md. 2001)
(denying summary judgment on claim that town officials violated Equal
Protection Clause under [City of Cleburne]{.underline} by zoning
decisions that excluded a home for individuals with mental retardation)
& [Pathways Psychosocial]{.underline} v. [Town of
Leonardtown]{.underline}, 223 F. Supp. 2d 699, 704-705 (D. Md. 2002)
(noting jury verdict against town and denying motion for new trial);
[Salcido ex rel. Gilliland]{.underline} v. [Woodbury County]{.underline}
119 F. Supp. 2d 900, 931 (N.D. Iowa 2000) (granting summary judgment for
mentally ill plaintiff on claim that he was denied due process by
State\'s denial of an appropriate institutional placement without notice
or hearing); [New York]{.underline} v. [County of
Schoharie]{.underline}, 82 F. Supp. 2d 19 (N.D.N.Y. 2000) (inaccessible
polling places); [Schmidt]{.underline} v. [Odell]{.underline}, 64 F.
Supp. 2d 1014 (D. Kan. 1999) (amputee forced to crawl around jail,
resulting in injury and infection, in violation of Eighth Amendment);
[Matthews]{.underline} v. [Jefferson]{.underline}, 29 F. Supp. 2d 525
(W.D. Ark. 1998) (paraplegic litigant had to be carried up stairs to
court room for all-day hearing at which he could not leave to get food
or use the restroom to empty catheter, resulting in infection;
eventually had to crawl down steps to get out after everyone else left
the courthouse without him); [Lewis]{.underline} v.
[Truitt]{.underline}, 960 F. Supp. 175 (S.D. Ind. 1997) (Fourth
Amendment prohibits use of force against an individual, whom officers
know to be deaf, for not complying with officers' spoken commands);
[Carty]{.underline} v. [Farrelly]{.underline}, 957 F. Supp. 727, 739
(D.V.I. 1997) ("The abominable treatment of the mentally ill inmates
shows overwhelmingly that defendants subject inmates to dehumanizing
conditions punishable under the Eighth Amendment.");
[Kaufman]{.underline} v. [Carter]{.underline}, 952 F. Supp. 520 (W.D.
Mich. 1996) (amputee hospitalized after fall in inaccessible jail
shower); [Harrelson]{.underline} v. [Elmore County]{.underline}, 859 F.
Supp. 1465, 1466 (M.D. Ala. 1994) (paraplegic prisoner denied use of a
wheelchair and forced to crawl around his cell); [T.E.P.]{.underline} v.
[Leavitt]{.underline}, 840 F. Supp. 110 (D. Utah 1993) (statute
prohibiting and voiding marriages between individuals with AIDS);
[Galloway]{.underline} v. [Superior Court]{.underline}, 816 F. Supp. 12
(D.D.C. 1993) (blind individuals categorically excluded from jury
service); [Nolley]{.underline} v. [County of Erie]{.underline}, 776 F.
Supp. 715 (W.D.N.Y. 1991) (Constitution violated where inmate with HIV
was housed in the part of a prison reserved for inmates who are mentally
disturbed, suicidal, or a danger to themselves, and was denied access to
prison library and religious services); [Bonner]{.underline} v. [Arizona
Dep't of Corrs.]{.underline}, 714 F. Supp. 420 (D. Az. 1989) (deaf,
mute, and vision-impaired inmate denied communication assistance,
including in disciplinary proceedings, counseling sessions, and medical
treatment); [DeLong]{.underline} v. [Brumbaugh]{.underline}, 703 F.
Supp. 399, 405 (W.D. Pa. 1989) (decision to exclude deaf individual from
jury was \"unreasonable, discriminatory and violative of Section 504 of
the Rehabilitation Act\"); [Doe]{.underline} v. [Dolton Elem. Sch.
Dist.]{.underline}, 694 F. Supp. 440 (N.D. Ill. 1988) (elementary
student with AIDS excluded from attending regular classes or
extracurricular activities); [Robertson]{.underline} v. [Granite City
Comm. Unit Sch. Dist.]{.underline}, 684 F. Supp. 1002) (S.D. Ill. 1988)
(seven-year old student with AIDS confined to a modular classroom where
he was the only student); [Thomas]{.underline} v. [Atascadero Unified
Sch. Dist.]{.underline}, 662 F. Supp. 376 (C.D. Cal. 1986) (kindergarten
student with AIDS excluded from class and forced to take home tutoring);
[Garrity]{.underline} v. [Gallen]{.underline}, 522 F. Supp. 171, 214
(D.N.H. 1981) ("blanket discrimination against the handicapped \* \* \*
is unfortunately firmly rooted in the history of our country"); [New
York State Ass'n for Retarded Children, Inc.]{.underline} v.
[Carey]{.underline}, 466 F. Supp. 487 (E.D.N.Y. 1979) (mentally retarded
students excluded from public school system); [Hairston]{.underline} v.
[Drosnick]{.underline}, 423 F. Supp. 180 (S.D. W. Va. 1976) (school
refused to admit child with spina bifida without the daily presence of
her mother, even though student was of normal mental competence and
capable of performing easily in a classroom situation);
[Smith]{.underline} v. [Fletcher]{.underline}, 393 F. Supp. 1366, 1368
(S.D. Tex. 1975) (government assigned paraplegic, who had a Master's
degree in physiology, to menial clerical tasks based on "arbitrary and
unfounded decision as to her physical capabilities"), aff'd as modified,
559 F.2d 1014 (5th Cir. 1977); [Mills]{.underline} v. [Board of
Educ.]{.underline}, 348 F. Supp. 866 (D.D.C. 1972) (mentally retarded
students excluded from public school system); [Pennsylvania Ass'n for
Retarded Children]{.underline} v. [Commonwealth]{.underline}, 334 F.
Supp. 1257 (E.D. Pa. 1971) (mentally retarded students excluded from
public school system); [State]{.underline} v. [Barber]{.underline}, 617
So. 2d 974, 976 (La. Ct. App. 1993) (\"\[T\]he Constitution requires
that a defendant sufficiently understand the proceedings against him to
be able to assist in his own defense. Clearly, a defendant who has a
severe hearing impairment, without an interpreter, cannot understand the
testimony of witnesses against him so as to be able to assist in his own
defense.\"); [State]{.underline} v. [Schaim]{.underline}, 600 N.E.2d
661, 671-672 (Ohio 1992) (under the Confrontation Clause \"a severely
hearing-impaired defendant cannot be tried without adopting reasonable
measures to accommodate his or her disability\"); [Peeler]{.underline}
v. [State]{.underline}, 750 S.W.2d 687, 690-691 (Mo. Ct. App. 1988)
(constitutionally ineffective assistance of counsel in failure to
request an interpreter, where the hearing-impaired defendant was
\"probably unable to understand what was being said at trial\");
[District 27 Comm. Sch. Bd.]{.underline} v. [Board of
Educ.]{.underline}, 502 N.Y.S.2d 325 (N.Y. Sup. Ct. 1986) (two school
boards sought to prevent attendance of any student with AIDS in any
school in the city, unless all of the students at that school had AIDS);
[People]{.underline} v. [Rivera]{.underline}, 480 N.Y.S.2d 426, 434
(N.Y. Sup. Ct. 1984) (a conviction was unconstitutionally obtained
because the deaf defendant had no interpreter and did not understand his
trial); [State]{.underline} v. [Staples]{.underline}, 437 A.2d 266, 268
(N.H. 1981) (ineffective assistance of counsel in failing to secure
assistance for hearing-impaired defendant whose disability made him
\"unable to assist effectively in the preparation of his defense\"); [In
re Marriage of Carney]{.underline}, 598 P.2d 36, 42 (Cal. 1979) (lower
court "stereotype\[d\] William as a person deemed forever unable to be a
good parent simply because he is physically handicapped"); [Connecticut
Inst. for the Blind]{.underline} v. [Connecticut Comm'n on Human Rights
& Opps.]{.underline}, 405 A.2d 618, 621 (Conn. 1978) (blanket exclusion
from state jobs of persons with visual impairments), modified, 355
N.Y.S.2d 185 (App. Div. 1974); [Bevan]{.underline} v. [New York State
Teachers' Retirement Sys.]{.underline}, 345 N.Y.S.2d 921 (Sup. Ct. 1973)
(statute allowing forced retirement of teacher who became blind); [In re
Adoption of Richardson]{.underline}, 251 Cal. App.2d 222, 239 (Cal.
1967) (trial court "stated, in effect, he will systematically strike any
and all deaf-mute petitioners from any list of prospective adopting
parents"); [State]{.underline} v. [Board of Educ.]{.underline}, 172 N.W.
153, 153 (Wis. 1919) (excluding a boy with cerebral palsy from public
school because he "produces a depressing and nauseating effect upon the
teachers and school children").

**[Appendix B]{.underline}**

**Findings of Investigations Under the Civil Rights**

**Of Institutionalized Persons Act**

**42 U.S.C. 1997 [et]{.underline} [seq.]{.underline}**

Between 1980 and the enactment of Title II of the Americans with
Disabilities Act in 1990, Department of Justice investigations under the
Civil Rights of Institutionalized Persons Act, 42 U.S.C. 1997
[et]{.underline} [seq.]{.underline}, found unconstitutional treatment of
individuals with disabilities in institutions in more than twenty-five
States. From 1980 until the present, unconstitutional conditions have
been found in more than 200 institutions in more than thirty States
throughout the country. The tables below describe some of the findings
issued by the Department of Justice pursuant to 42 U.S.C. 1997b(a)(1).

**I. Investigations Prior to Enactment of the Americans with
Disabilities Act**

+--------------+-----+-----+-----------------+-----------------------+
| **Name of    | **S | **  | **Categories of | **Details**           |
| Facility**   | tat | Yea | Constitutional  |                       |
|              | e** | r** | Violations**    |                       |
+==============+=====+=====+=================+=======================+
| **Rosewood   | MD  | 1   | Failure to      | Many residents        |
| Center**     |     | 982 | provide         | sustain injuries      |
|              |     |     | reasonable      | during "low staffing  |
|              |     |     | supervision and | periods" (p. 4).      |
|              |     |     | safety          |                       |
|              |     |     |                 | One resident left the |
|              |     |     |                 | facility unobserved   |
|              |     |     |                 | and died of exposure. |
|              |     |     |                 |                       |
|              |     |     |                 | Another profoundly    |
|              |     |     |                 | retarded resident     |
|              |     |     |                 | drowned when staff    |
|              |     |     |                 | left him unattended   |
|              |     |     |                 | in a bathtub. Another |
|              |     |     |                 | died after being      |
|              |     |     |                 | pushed down a flight  |
|              |     |     |                 | of stairs (pp. 4-5).  |
|              |     |     |                 |                       |
|              |     |     |                 | On another occasion,  |
|              |     |     |                 | "six severely         |
|              |     |     |                 | handicapped female    |
|              |     |     |                 | residents \* \* \*    |
|              |     |     |                 | were allegedly raped  |
|              |     |     |                 | by an outside         |
|              |     |     |                 | intruder. There was   |
|              |     |     |                 | only one staff person |
|              |     |     |                 | on duty to supervise  |
|              |     |     |                 | the 32 residents \*   |
|              |     |     |                 | \* \* and only one    |
|              |     |     |                 | security officer on   |
|              |     |     |                 | duty to cover the     |
|              |     |     |                 | entire Rosewood       |
|              |     |     |                 | facility. While the   |
|              |     |     |                 | inability of the      |
|              |     |     |                 | residents to          |
|              |     |     |                 | communicate           |
|              |     |     |                 | apparently prevented  |
|              |     |     |                 | state officials from  |
|              |     |     |                 | confirming the rapes  |
|              |     |     |                 | \* \* \* several of   |
|              |     |     |                 | the residents had     |
|              |     |     |                 | positive tests for    |
|              |     |     |                 | gonorrhea of the      |
|              |     |     |                 | throat right after    |
|              |     |     |                 | the incident" (p. 4). |
|              |     |     |                 |                       |
|              |     |     |                 | Several male patients |
|              |     |     |                 | "show\[ed\] the       |
|              |     |     |                 | presence of venereal  |
|              |     |     |                 | disease" and          |
|              |     |     |                 | "nonconsensual sexual |
|              |     |     |                 | contact occurred      |
|              |     |     |                 | between one resident  |
|              |     |     |                 | and at least one and  |
|              |     |     |                 | possibly three        |
|              |     |     |                 | residents" (p. 4).    |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Abuse of        | An employee sexually  |
|              |     |     | residents       | abused a resident (p. |
|              |     |     |                 | 4).                   |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unsanitary      | Facilities are        |
|              |     |     | conditions      | deteriorating; the    |
|              |     |     |                 | "stench of urine is   |
|              |     |     |                 | prevalent in a number |
|              |     |     |                 | of buildings."        |
|              |     |     |                 | Plumbing problems     |
|              |     |     |                 | left overflowing      |
|              |     |     |                 | toilets unrepaired    |
|              |     |     |                 | for days; heating     |
|              |     |     |                 | problems subjected    |
|              |     |     |                 | patients to           |
|              |     |     |                 | "sub-freezing         |
|              |     |     |                 | temperature in the    |
|              |     |     |                 | buildings themselves" |
|              |     |     |                 | at times (p. 5).      |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | "Over 900 of the 1125 |
|              |     |     | training        | residents receive     |
|              |     |     |                 | less than 50% of the  |
|              |     |     |                 | services called for   |
|              |     |     |                 | in their program      |
|              |     |     |                 | plans" (p. 2).        |
+--------------+-----+-----+-----------------+-----------------------+
| **East       | LA  | 1   | Inadequate      | pp. 2-4               |
| Louisiana    |     | 982 | medical and     |                       |
| State        |     |     | mental health   |                       |
| Hospital**   |     |     | care            |                       |
+--------------+-----+-----+-----------------+-----------------------+
| **Enid &     | OK  | 1   | Inadequate      | "Insufficient         |
| Paul's       |     | 983 | medical and     | licensed physician    |
| Valley State |     |     | mental health   | coverage has resulted |
| Schools**    |     |     | care            | in serious harms to   |
|              |     |     |                 | residents,"           |
|              |     |     |                 | contributing to       |
|              |     |     |                 | patient deaths (p.    |
|              |     |     |                 | 2-3).                 |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | Lack of training      |
|              |     |     | training        | "contributes to and   |
|              |     |     |                 | manifests itself in   |
|              |     |     |                 | residents' aggressive |
|              |     |     |                 | and stereotypic       |
|              |     |     |                 | behaviors \* \* \*    |
|              |     |     |                 | \[such as\] incessant |
|              |     |     |                 | disordered physical   |
|              |     |     |                 | movements,            |
|              |     |     |                 | headbanging, biting,  |
|              |     |     |                 | hyperactivity, and    |
|              |     |     |                 | assaultive behavior"  |
|              |     |     |                 | (p. 5).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Failure to      | "For example, a group |
|              |     |     | provide         | of 21 naked residents |
|              |     |     | reasonable      | were observed being   |
|              |     |     | supervision and | led to a shower area, |
|              |     |     | safety          | where two staff       |
|              |     |     |                 | sprayed the residents |
|              |     |     |                 | down with a large     |
|              |     |     |                 | garden type hose" (p. |
|              |     |     |                 | 5).                   |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | p\. 5                 |
|              |     |     | use of physical |                       |
|              |     |     | and chemical    |                       |
|              |     |     | restraints      |                       |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Abuse of        | Staff found           |
|              |     |     | residents       | "slapping, kicking,   |
|              |     |     |                 | hitting, or spanking  |
|              |     |     |                 | residents" while      |
|              |     |     |                 | records also "reflect |
|              |     |     |                 | many instances of     |
|              |     |     |                 | unexplained resident  |
|              |     |     |                 | injuries" (p. 6).     |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unsanitary      | Lack of sanitation    |
|              |     |     | conditions      | practices contributed |
|              |     |     |                 | to parasitic and      |
|              |     |     |                 | bacterial infections  |
|              |     |     |                 | requiring quarantine  |
|              |     |     |                 | of entire living      |
|              |     |     |                 | areas (p. 6).         |
+--------------+-----+-----+-----------------+-----------------------+
| **Wheat      | CO  | 1   | Failure to      | "Due to lack of       |
| Ridge        |     | 984 | provide         | staff, residents      |
| Regional     |     |     | reasonable      | suffer neglect and    |
| Center**     |     |     | supervision and | numerous accidents    |
|              |     |     | safety          | and injuries. \* \*   |
|              |     |     |                 | \* \[N\]umerous       |
|              |     |     |                 | residents have        |
|              |     |     |                 | sustained injuries    |
|              |     |     |                 | where the cause       |
|              |     |     |                 | remains unknown.      |
|              |     |     |                 | Resident on resident  |
|              |     |     |                 | assaults are common;  |
|              |     |     |                 | residents engaging in |
|              |     |     |                 | self-abusive          |
|              |     |     |                 | behaviors are         |
|              |     |     |                 | frequently            |
|              |     |     |                 | unsupervised and      |
|              |     |     |                 | unattended. Residents |
|              |     |     |                 | have been found with  |
|              |     |     |                 | unexplained broken    |
|              |     |     |                 | bones and burns to    |
|              |     |     |                 | the body. For         |
|              |     |     |                 | example, one resident |
|              |     |     |                 | was found with a      |
|              |     |     |                 | femur segment         |
|              |     |     |                 | protruding through    |
|              |     |     |                 | the skin" (p. 2).     |
|              |     |     |                 |                       |
|              |     |     |                 | During tour, staff    |
|              |     |     |                 | came upon             |
|              |     |     |                 | "approximately 20     |
|              |     |     |                 | adult women being     |
|              |     |     |                 | cared for by one      |
|              |     |     |                 | person amid great     |
|              |     |     |                 | disorder and          |
|              |     |     |                 | confusion. Many of    |
|              |     |     |                 | these women were      |
|              |     |     |                 | partially undressed,  |
|              |     |     |                 | one was urinating on  |
|              |     |     |                 | the floor of the      |
|              |     |     |                 | living area and       |
|              |     |     |                 | several were engaging |
|              |     |     |                 | in self-abusive       |
|              |     |     |                 | behavior" (p. 2).     |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | "A large number of    |
|              |     |     | medical and     | Wheat Ridge residents |
|              |     |     | mental health   | suffer from severe    |
|              |     |     | care            | contractures of their |
|              |     |     |                 | limbs and other body  |
|              |     |     |                 | deformities due to    |
|              |     |     |                 | the absence of        |
|              |     |     |                 | necessary physical    |
|              |     |     |                 | and occupational      |
|              |     |     |                 | therapy" (p. 3). "One |
|              |     |     |                 | troublesome secondary |
|              |     |     |                 | effect of these       |
|              |     |     |                 | immobilizing          |
|              |     |     |                 | contractures due to   |
|              |     |     |                 | lack of physical      |
|              |     |     |                 | therapy is the        |
|              |     |     |                 | dysfunctioning of the |
|              |     |     |                 | digestive system,"    |
|              |     |     |                 | which has apparently  |
|              |     |     |                 | caused an "abnormally |
|              |     |     |                 | high percentage of    |
|              |     |     |                 | Wheat Ridge residents |
|              |     |     |                 | to require pureed     |
|              |     |     |                 | diets or              |
|              |     |     |                 | gastroatomies for     |
|              |     |     |                 | tube feeding" (p. 4). |
+--------------+-----+-----+-----------------+-----------------------+
| **Logansport | IN  | 1   | Inadequate      | pp. 1-2               |
| State        |     | 984 | medical and     |                       |
| Hospital**   |     |     | mental health   |                       |
|              |     |     | care            |                       |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Failure to      | "Patients are not     |
|              |     |     | provide         | being adequately      |
|              |     |     | reasonable      | monitored and         |
|              |     |     | supervision and | supervised to prevent |
|              |     |     | safety          | suicidal behavior or  |
|              |     |     |                 | patient-on-patient    |
|              |     |     |                 | violence, to notice   |
|              |     |     |                 | and correctly         |
|              |     |     |                 | diagnose symptoms of  |
|              |     |     |                 | serious, physical or  |
|              |     |     |                 | psychiatric           |
|              |     |     |                 | dysfunctions, to      |
|              |     |     |                 | monitor treatment     |
|              |     |     |                 | responses and drug    |
|              |     |     |                 | reactions, or to      |
|              |     |     |                 | determine appropriate |
|              |     |     |                 | and reasonably safe   |
|              |     |     |                 | modes of treatment    |
|              |     |     |                 | for each patient"     |
|              |     |     |                 | (pp. 2-3).            |
+--------------+-----+-----+-----------------+-----------------------+
| **Manteno    | IL  | 1   | Inadequate      | Lack of professional  |
| and Eglin    |     | 984 | medical and     | staff lead to         |
| Mental       |     |     | mental health   | "inappropriate uses   |
| Health       |     |     | care;           | of drugs and serious  |
| Centers**    |     |     | Inadequate      | treatment errors      |
|              |     |     | training;       | which have resulted   |
|              |     |     | Unreasonable    | in physical danger    |
|              |     |     | use of physical | to, or unnecessary    |
|              |     |     | restraints      | physical or chemical  |
|              |     |     |                 | restraint of, the     |
|              |     |     |                 | involved patients"    |
|              |     |     |                 | (p. 3). Patients are  |
|              |     |     |                 | further "endangered   |
|              |     |     |                 | by inadequate medical |
|              |     |     |                 | care relating to      |
|              |     |     |                 | serious and sometimes |
|              |     |     |                 | debilitating or       |
|              |     |     |                 | life-threatening drug |
|              |     |     |                 | side-effects" (p. 4). |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Failure to      | "Units in the         |
|              |     |     | provide         | facilities are        |
|              |     |     | reasonable      | overcrowded to a      |
|              |     |     | supervision and | point that makes it   |
|              |     |     | safety          | virtually impossible  |
|              |     |     |                 | for staff to maintain |
|              |     |     |                 | control without       |
|              |     |     |                 | regular and extensive |
|              |     |     |                 | use of physical and   |
|              |     |     |                 | chemical restraints"  |
|              |     |     |                 | (p. 4).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unsanitary      | "Sanitation and       |
|              |     |     | conditions      | maintenance in        |
|              |     |     |                 | portions of the       |
|              |     |     |                 | facilities are so     |
|              |     |     |                 | inadequate as to      |
|              |     |     |                 | present serious risks |
|              |     |     |                 | to patients of        |
|              |     |     |                 | poisoning, infection, |
|              |     |     |                 | or disease" (pp.      |
|              |     |     |                 | 4-5).                 |
+--------------+-----+-----+-----------------+-----------------------+
| **Northville | MI  | 1   | Failure to      | Large number of       |
| Regional     |     | 984 | provide         | patient deaths under  |
| Psychiatric  |     |     | reasonable      | unusual               |
| Hospital**   |     |     | supervision and | circumstances, some   |
|              |     |     | safety; Abuse   | associated with       |
|              |     |     | of residents    | restraint practices   |
|              |     |     |                 | (p. 3).               |
|              |     |     |                 |                       |
|              |     |     |                 | A patient died after  |
|              |     |     |                 | "a stranglehold was   |
|              |     |     |                 | applied to him while  |
|              |     |     |                 | he was being subdued. |
|              |     |     |                 | He reportedly lay on  |
|              |     |     |                 | the seclusion room    |
|              |     |     |                 | floor from 15-20      |
|              |     |     |                 | minutes before        |
|              |     |     |                 | efforts were made to  |
|              |     |     |                 | resuscitate him" (pp. |
|              |     |     |                 | 2-3).                 |
|              |     |     |                 |                       |
|              |     |     |                 | "Another patient also |
|              |     |     |                 | died due to           |
|              |     |     |                 | strangulation, and    |
|              |     |     |                 | his body showed signs |
|              |     |     |                 | of a beating" (p. 3). |
|              |     |     |                 |                       |
|              |     |     |                 | "A third patient      |
|              |     |     |                 | allegedly died from   |
|              |     |     |                 | injuries suffered in  |
|              |     |     |                 | a beating. Still      |
|              |     |     |                 | another patient, who  |
|              |     |     |                 | had expressed her     |
|              |     |     |                 | fear for her safety   |
|              |     |     |                 | to her psychologist   |
|              |     |     |                 | on a Friday, died     |
|              |     |     |                 | over the weekend. Her |
|              |     |     |                 | body allegedly was    |
|              |     |     |                 | bruised and battered" |
|              |     |     |                 | (p. 3).               |
|              |     |     |                 |                       |
|              |     |     |                 | Police found that     |
|              |     |     |                 | another patient who   |
|              |     |     |                 | had died in a         |
|              |     |     |                 | seclusion cell "had   |
|              |     |     |                 | contusions on his     |
|              |     |     |                 | face and the back of  |
|              |     |     |                 | his head" (p. 3).     |
|              |     |     |                 |                       |
|              |     |     |                 | There have also been  |
|              |     |     |                 | "numerous incidents   |
|              |     |     |                 | of rape, assault and  |
|              |     |     |                 | threat of assault,    |
|              |     |     |                 | broken bones and      |
|              |     |     |                 | bruises" (p. 3).      |
|              |     |     |                 |                       |
|              |     |     |                 | A staff member was    |
|              |     |     |                 | found to have had     |
|              |     |     |                 | "sexual relations     |
|              |     |     |                 | with three different  |
|              |     |     |                 | patients in one       |
|              |     |     |                 | night." Other         |
|              |     |     |                 | patients were beaten  |
|              |     |     |                 | by staff, "including  |
|              |     |     |                 | one who was stripped, |
|              |     |     |                 | placed in seclusion   |
|              |     |     |                 | and severely beaten   |
|              |     |     |                 | by several            |
|              |     |     |                 | attendants" (p. 3).   |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | Inadequate medical    |
|              |     |     | medical and     | care contributed to   |
|              |     |     | mental health   | several deaths and    |
|              |     |     | care            | preventable suicides  |
|              |     |     |                 | (pp. 3-4).            |
+--------------+-----+-----+-----------------+-----------------------+
| **Fairview   | OR  | 1   | Inadequate      | Training "is          |
| Training     |     | 985 | training        | virtually             |
| Center**     |     |     |                 | non-existent" and     |
|              |     |     |                 | "results in a serious |
|              |     |     |                 | level of              |
|              |     |     |                 | self-injurious and    |
|              |     |     |                 | aggressive behaviors" |
|              |     |     |                 | (p. 3).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | "\[R\]estraints are   |
|              |     |     | use of physical | used at Fairview in   |
|              |     |     | and chemical    | lieu of training and  |
|              |     |     | restraints      | for the convenience   |
|              |     |     |                 | of staff," and were   |
|              |     |     |                 | employed more than    |
|              |     |     |                 | 2,000 times per month |
|              |     |     |                 | (p. 4).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Failure to      | Records showed "an    |
|              |     |     | provide         | alarmingly high       |
|              |     |     | reasonable      | number of injuries,"  |
|              |     |     | supervision and | such as 197 incidents |
|              |     |     | safety          | of injuries in one    |
|              |     |     |                 | month resulting from  |
|              |     |     |                 | self-abuse or         |
|              |     |     |                 | aggression. In one    |
|              |     |     |                 | two-month period,     |
|              |     |     |                 | there were 27         |
|              |     |     |                 | incidents of sexual   |
|              |     |     |                 | abuse (p. 3 n.1).     |
|              |     |     |                 |                       |
|              |     |     |                 | "\[W\]e observed      |
|              |     |     |                 | numerous residents    |
|              |     |     |                 | with open wounds,     |
|              |     |     |                 | gashes, abrasions,    |
|              |     |     |                 | contusions, and fresh |
|              |     |     |                 | bite marks. Many      |
|              |     |     |                 | other residents had   |
|              |     |     |                 | deep scars and scabs  |
|              |     |     |                 | from a long history   |
|              |     |     |                 | of self-abuse or      |
|              |     |     |                 | victimization" (p.    |
|              |     |     |                 | 3).                   |
|              |     |     |                 |                       |
|              |     |     |                 | Due to inadequate     |
|              |     |     |                 | supervision of        |
|              |     |     |                 | residents with pica   |
|              |     |     |                 | behavior (ingesting   |
|              |     |     |                 | inedible objects),    |
|              |     |     |                 | "\[r\]esidents have   |
|              |     |     |                 | had to undergo        |
|              |     |     |                 | surgery, sometimes on |
|              |     |     |                 | a repeated basis, to  |
|              |     |     |                 | remove foreign        |
|              |     |     |                 | objects or to relieve |
|              |     |     |                 | bowel and other       |
|              |     |     |                 | obstructions caused   |
|              |     |     |                 | by pica. Physicians   |
|              |     |     |                 | at Fairview have      |
|              |     |     |                 | indicated that some   |
|              |     |     |                 | residents have had    |
|              |     |     |                 | surgery so frequently |
|              |     |     |                 | that any more         |
|              |     |     |                 | operations resulting  |
|              |     |     |                 | from pica would       |
|              |     |     |                 | jeopardize their      |
|              |     |     |                 | lives" (p. 8).        |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | Dangerous             |
|              |     |     | medical and     | psychotropic          |
|              |     |     | mental health   | medication practices  |
|              |     |     | care            | (p. 7-8).             |
|              |     |     |                 |                       |
|              |     |     |                 | "Seventy percent of   |
|              |     |     |                 | residents             |
|              |     |     |                 | institution-wide have |
|              |     |     |                 | gum disease" (p. 8).  |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unsanitary      | "Many of the cottages |
|              |     |     | conditions      | we toured smelled of  |
|              |     |     |                 | urine and waste.      |
|              |     |     |                 | Sewage backup in      |
|              |     |     |                 | cottage basements, up |
|              |     |     |                 | to three feet high on |
|              |     |     |                 | the walls, is         |
|              |     |     |                 | permitted to remain   |
|              |     |     |                 | for days. \* \* \*    |
|              |     |     |                 | \[A\]n August 1983    |
|              |     |     |                 | random sample of      |
|              |     |     |                 | Fairview residents    |
|              |     |     |                 | revealed that 35% had |
|              |     |     |                 | pinworm infection, a  |
|              |     |     |                 | parasite which is     |
|              |     |     |                 | spread by fecal and   |
|              |     |     |                 | oral routes in        |
|              |     |     |                 | unclean environments" |
|              |     |     |                 | (p. 9).               |
+--------------+-----+-----+-----------------+-----------------------+
| **Fort       | NM  | 1   | Inadequate      | Facilities' sole      |
| Stanton      |     | 985 | medical and     | physician wrote       |
| Hospital &   |     |     | mental health   | institution-wide      |
| Training     |     |     | care            | prescriptions for     |
| School**     |     |     |                 | prescription          |
|              |     |     |                 | medications and       |
|              |     |     |                 | powerful psychotropic |
|              |     |     |                 | medications,          |
|              |     |     |                 | authorizing their use |
|              |     |     |                 | when nursing staff    |
|              |     |     |                 | believes it           |
|              |     |     |                 | necessary, in         |
|              |     |     |                 | contravention of      |
|              |     |     |                 | professional          |
|              |     |     |                 | standards and         |
|              |     |     |                 | creating substantial  |
|              |     |     |                 | risk to patients      |
|              |     |     |                 | (p. 2).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | Psychotropic drugs    |
|              |     |     | use of chemical | being used to         |
|              |     |     | restraints      | restrain patients     |
|              |     |     |                 | without any physician |
|              |     |     |                 | assessment for the    |
|              |     |     |                 | need for such         |
|              |     |     |                 | measures (p. 2.)      |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | "Many residents are   |
|              |     |     | mental health   | subjected to          |
|              |     |     | care            | potentially           |
|              |     |     |                 | dangerous"            |
|              |     |     |                 | prescriptions of      |
|              |     |     |                 | multiple psychotropic |
|              |     |     |                 | drugs "without any    |
|              |     |     |                 | medical               |
|              |     |     |                 | justification" (p. 2) |
+--------------+-----+-----+-----------------+-----------------------+
| **Southbury  | CT  | 1   | Failure to      | Low staffing levels   |
| Training     |     | 985 | provide         | lead to inadequate    |
| School**     |     |     | reasonable      | supervision, which    |
|              |     |     | supervision and | permitted one         |
|              |     |     | safety          | resident to leave the |
|              |     |     |                 | facility and die of   |
|              |     |     |                 | exposure; another was |
|              |     |     |                 | able to remove and    |
|              |     |     |                 | hide a large knife    |
|              |     |     |                 | (p. 10).              |
|              |     |     |                 |                       |
|              |     |     |                 | In one cottage, staff |
|              |     |     |                 | compensate for low    |
|              |     |     |                 | staffing level by     |
|              |     |     |                 | placing "at least one |
|              |     |     |                 | resident in           |
|              |     |     |                 | restraints for up to  |
|              |     |     |                 | 12 hours a day due to |
|              |     |     |                 | the staff's inability |
|              |     |     |                 | to monitor his        |
|              |     |     |                 | activities" (p. 10).  |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | Investigation found   |
|              |     |     | medical and     | "dangerous medication |
|              |     |     | mental health   | interactions and      |
|              |     |     | care            | errors, and found     |
|              |     |     |                 | that acute medical    |
|              |     |     |                 | problems, such as     |
|              |     |     |                 | fractures and         |
|              |     |     |                 | infections,           |
|              |     |     |                 | frequently do not     |
|              |     |     |                 | receive critically    |
|              |     |     |                 | necessary follow-up   |
|              |     |     |                 | treatment" (p. 3).    |
|              |     |     |                 |                       |
|              |     |     |                 | Use of psychotropic   |
|              |     |     |                 | medications           |
|              |     |     |                 | substantially         |
|              |     |     |                 | departed from         |
|              |     |     |                 | professional          |
|              |     |     |                 | standards, creating   |
|              |     |     |                 | substantial health    |
|              |     |     |                 | risks for patients    |
|              |     |     |                 | (pp. 3-6).            |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | Facility's failure to |
|              |     |     | training;       | provide adequate      |
|              |     |     | Unreasonable    | training program      |
|              |     |     | use of physical | resulted in "a        |
|              |     |     | and chemical    | dangerous reliance on |
|              |     |     | restraints      | the use of both       |
|              |     |     |                 | physical and chemical |
|              |     |     |                 | restraint" (p. 6).    |
+--------------+-----+-----+-----------------+-----------------------+
| **Hinds      | MS  | 1   | Inadequate      | County Jail was being |
| County       |     | 986 | medical and     | used to house         |
| Detention    |     |     | mental health   | mentally ill persons  |
| Center**     |     |     | care            | awaiting civil        |
|              |     |     |                 | commitment hearings   |
|              |     |     |                 | or placement in a     |
|              |     |     |                 | mental hospital for   |
|              |     |     |                 | up to eleven days. At |
|              |     |     |                 | time of               |
|              |     |     |                 | investigation, jail   |
|              |     |     |                 | held 42 mentally-ill  |
|              |     |     |                 | detainees (pp. 1-2).  |
|              |     |     |                 |                       |
|              |     |     |                 | No mental health      |
|              |     |     |                 | treatment was         |
|              |     |     |                 | provided during       |
|              |     |     |                 | period of confinement |
|              |     |     |                 | (p. 3).               |
|              |     |     |                 |                       |
|              |     |     |                 | "Male mentally-ill    |
|              |     |     |                 | detainees were        |
|              |     |     |                 | confined \* \* \* in  |
|              |     |     |                 | a small cell designed |
|              |     |     |                 | to serve as the       |
|              |     |     |                 | 'drunk tank.' Some of |
|              |     |     |                 | the detainees were    |
|              |     |     |                 | placed in hand and    |
|              |     |     |                 | leg irons" (p. 3).    |
+--------------+-----+-----+-----------------+-----------------------+
| **Westboro   | MA  | 1   | Unsanitary      | "The smell and sight  |
| State        |     | 986 | conditions      | of urine and feces    |
| Hospital**   |     |     |                 | pervade not only the  |
|              |     |     |                 | toilet areas, but     |
|              |     |     |                 | ward floors and walls |
|              |     |     |                 | as well" (p. 3).      |
|              |     |     |                 |                       |
|              |     |     |                 | "Bathrooms and        |
|              |     |     |                 | showers were filthy.  |
|              |     |     |                 | Living areas are      |
|              |     |     |                 | infested with vermin. |
|              |     |     |                 | There are consistent  |
|              |     |     |                 | shortages of clean    |
|              |     |     |                 | bed sheets, face      |
|              |     |     |                 | cloths, towels and    |
|              |     |     |                 | underwear. Open       |
|              |     |     |                 | commodes with human   |
|              |     |     |                 | waste in them were    |
|              |     |     |                 | often found in rooms  |
|              |     |     |                 | to which many         |
|              |     |     |                 | patients in unclean   |
|              |     |     |                 | geri-chairs are       |
|              |     |     |                 | confined all day,     |
|              |     |     |                 | including meal times" |
|              |     |     |                 | (p. 3).               |
|              |     |     |                 |                       |
|              |     |     |                 | "\[N\]on-sterile      |
|              |     |     |                 | techniques are used   |
|              |     |     |                 | when changing         |
|              |     |     |                 | patients' dressings   |
|              |     |     |                 | and feeding tubes"    |
|              |     |     |                 | (p. 3).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | Patients' physical    |
|              |     |     | medical and     | illnesses are often   |
|              |     |     | mental health   | misdiagnosed as       |
|              |     |     | care            | psychological         |
|              |     |     |                 | problems, resulting   |
|              |     |     |                 | in "increased dosages |
|              |     |     |                 | of potentially        |
|              |     |     |                 | dangerous             |
|              |     |     |                 | antipsychotic drugs"  |
|              |     |     |                 | (p. 5).               |
|              |     |     |                 |                       |
|              |     |     |                 | "Acutely life         |
|              |     |     |                 | threatening illnesses |
|              |     |     |                 | \* \* \* are also not |
|              |     |     |                 | detected              |
|              |     |     |                 | appropriately or on a |
|              |     |     |                 | timely basis.\* \* \* |
|              |     |     |                 |                       |
|              |     |     |                 | \[I\]nappropriate and |
|              |     |     |                 | inadequate medical    |
|              |     |     |                 | care preceded many of |
|              |     |     |                 | the\[\] deaths"       |
|              |     |     |                 | reviewed during the   |
|              |     |     |                 | investigation (p. 5). |
|              |     |     |                 |                       |
|              |     |     |                 | "Patients also        |
|              |     |     |                 | frequently do not     |
|              |     |     |                 | receive prescribed    |
|              |     |     |                 | medications because   |
|              |     |     |                 | the ward or pharmacy  |
|              |     |     |                 | lacks adequate        |
|              |     |     |                 | supplies" (p. 4).     |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | Facility used         |
|              |     |     | use of physical | sedating drugs on     |
|              |     |     | and chemical    | elderly patients for  |
|              |     |     | restraints      | no medically          |
|              |     |     |                 | justifiable reason,   |
|              |     |     |                 | but instead to        |
|              |     |     |                 | control residents'    |
|              |     |     |                 | behavior "subjecting  |
|              |     |     |                 | vulnerable geriatric  |
|              |     |     |                 | patients to the       |
|              |     |     |                 | dangerous effects of  |
|              |     |     |                 | inappropriate drug    |
|              |     |     |                 | usage and             |
|              |     |     |                 | overmedication"       |
|              |     |     |                 | (p. 7).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Failure to      | pp. 7-8               |
|              |     |     | provide         |                       |
|              |     |     | reasonable      |                       |
|              |     |     | supervision and |                       |
|              |     |     | safety;         |                       |
|              |     |     | Inadequate      |                       |
|              |     |     | training        |                       |
+--------------+-----+-----+-----------------+-----------------------+
| **Kalamazoo  | MI  | 1   | Inadequate      | Inadequate staffing   |
| Regional     |     | 986 | training;       | prevents the facility |
| Psychiatric  |     |     | Unreasonable    | from providing        |
| Hospital**   |     |     | use of physical | treatment that could  |
|              |     |     | restraints      | "reduce or eliminate  |
|              |     |     |                 | unreasonable risks to |
|              |     |     |                 | \[patients'\]         |
|              |     |     |                 | personal safety and   |
|              |     |     |                 | the undue use of      |
|              |     |     |                 | bodily restraint" (p. |
|              |     |     |                 | 2).                   |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | Facility fails to     |
|              |     |     | medical and     | adequately monitor    |
|              |     |     | mental health   | efficacy and side     |
|              |     |     | care            | effects of            |
|              |     |     |                 | potentially dangerous |
|              |     |     |                 | drugs, creating       |
|              |     |     |                 | unjustifiable risk of |
|              |     |     |                 | "deleterious side     |
|              |     |     |                 | effects, tardive      |
|              |     |     |                 | dyskinesia,           |
|              |     |     |                 | involuntary, abnormal |
|              |     |     |                 | muscle movements,     |
|              |     |     |                 | akathisia, and        |
|              |     |     |                 | parkinsonism" (p. 3). |
+--------------+-----+-----+-----------------+-----------------------+
| **Napa State | CA  | 1   | Failure to      | Severe staffing       |
| Hospital**   |     | 986 | provide         | shortages "result in  |
|              |     |     | reasonable      | patient management,   |
|              |     |     | supervision and | in lieu of treatment, |
|              |     |     | safety;         | through the           |
|              |     |     | Unreasonable    | inappropriate use of  |
|              |     |     | use of physical | seclusion, chemical   |
|              |     |     | and chemical    | restraint, and        |
|              |     |     | restraints      | physical restraint"   |
|              |     |     |                 | (p. 2).               |
|              |     |     |                 |                       |
|              |     |     |                 | Restraint practices   |
|              |     |     |                 | "pose significant     |
|              |     |     |                 | hazards to the        |
|              |     |     |                 | personal safety of    |
|              |     |     |                 | NSH patients" (p. 4). |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | Certain medication    |
|              |     |     | medical and     | practices at facility |
|              |     |     | mental health   | "violated all known   |
|              |     |     | care;           | standards of medical  |
|              |     |     | Inadequate      | practice" resulting   |
|              |     |     | training        | in great danger to    |
|              |     |     |                 | patient safety (p.    |
|              |     |     |                 | 2).                   |
|              |     |     |                 |                       |
|              |     |     |                 | There was no          |
|              |     |     |                 | monitoring of drug    |
|              |     |     |                 | side effects and      |
|              |     |     |                 | several patients      |
|              |     |     |                 | exhibited an          |
|              |     |     |                 | "antipsychotic        |
|              |     |     |                 | drug-induced side     |
|              |     |     |                 | effect, potentially   |
|              |     |     |                 | irreversible, that    |
|              |     |     |                 | may result in         |
|              |     |     |                 | permanent             |
|              |     |     |                 | physiological damage" |
|              |     |     |                 | (p. 3).               |
|              |     |     |                 |                       |
|              |     |     |                 | Facility failed to    |
|              |     |     |                 | provide training      |
|              |     |     |                 | programs adequate to  |
|              |     |     |                 | protect patient       |
|              |     |     |                 | safety and avoid need |
|              |     |     |                 | for restraint and     |
|              |     |     |                 | seclusion (p. 5).     |
+--------------+-----+-----+-----------------+-----------------------+
| **Broadview, | OH  | 1   | Inadequate      | In the absence of     |
| Cleveland &  |     | 987 | training;       | adequate training     |
| Warrensville |     |     |                 | programs, "staff      |
| D            |     |     | Unreasonable    | overuse psychotropic  |
| evelopmental |     |     | use of chemical | medication to control |
| Centers**    |     |     | restraints      | the behavior of       |
|              |     |     |                 | residents" (p. 1).    |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | p\. 2                 |
|              |     |     | mental health   |                       |
|              |     |     | care            |                       |
+--------------+-----+-----+-----------------+-----------------------+
| **           | LA  | 1   | Inadequate      | "MDC employs          |
| Metropolitan |     | 986 | medical and     | antipsychotic         |
| D            |     |     | mental health   | medication primarily  |
| evelopmental |     |     | care            | as a means of         |
| Center**     |     |     |                 | controlling behavior  |
|              |     |     |                 | without proper        |
|              |     |     |                 | \[medical\]           |
|              |     |     |                 | justification." As a  |
|              |     |     |                 | result, "\[n\]umerous |
|              |     |     |                 | residents             |
|              |     |     |                 | demonstrated serious  |
|              |     |     |                 | neurological side     |
|              |     |     |                 | effects from          |
|              |     |     |                 | sustained exposure to |
|              |     |     |                 | high doses of         |
|              |     |     |                 | antipsychotic drugs"  |
|              |     |     |                 | (p. 2). Facility had  |
|              |     |     |                 | no program for        |
|              |     |     |                 | monitoring for        |
|              |     |     |                 | serious, potentially  |
|              |     |     |                 | irreversible side     |
|              |     |     |                 | effects of these      |
|              |     |     |                 | medications (pp.      |
|              |     |     |                 | 2-3).                 |
|              |     |     |                 |                       |
|              |     |     |                 | Other residents "have |
|              |     |     |                 | been exposed to an    |
|              |     |     |                 | extreme risk of       |
|              |     |     |                 | drug-induced toxic    |
|              |     |     |                 | poisoning by the      |
|              |     |     |                 | absence of            |
|              |     |     |                 | preliminary and       |
|              |     |     |                 | periodic drug-level   |
|              |     |     |                 | testing" (p. 3).      |
+--------------+-----+-----+-----------------+-----------------------+
| **Belle      | LA  | 1   | Inadequate      | Administration of     |
| Chasse State |     | 986 | medical and     | psychotropic drugs    |
| School**     |     |     | mental health   | substantially         |
|              |     |     | care            | departed from         |
|              |     |     |                 | professional          |
|              |     |     |                 | standards. There was  |
|              |     |     |                 | no program to detect  |
|              |     |     |                 | "Tardive Dyskinesia"  |
|              |     |     |                 | which is "an          |
|              |     |     |                 | antipsychotic drug    |
|              |     |     |                 | induced side effect,  |
|              |     |     |                 | potentially           |
|              |     |     |                 | irreversible, that    |
|              |     |     |                 | may result in         |
|              |     |     |                 | permanent             |
|              |     |     |                 | physiological damage" |
|              |     |     |                 | (p. 2).               |
+--------------+-----+-----+-----------------+-----------------------+
| **Montgomery | OH  | 1   | Inadequate      | pp. 2-3               |
| D            |     | 987 | medical and     |                       |
| evelopmental |     |     | mental health   |                       |
| Center**     |     |     | care; Failure   |                       |
|              |     |     | to provide      |                       |
|              |     |     | reasonable      |                       |
|              |     |     | supervision and |                       |
|              |     |     | safety          |                       |
+--------------+-----+-----+-----------------+-----------------------+
| **Los Lunas  | NM  | 1   | Inadequate      | "\[S\]traightjackets  |
| Hospital and |     | 988 | training;       | and ammonia inhalants |
| Training     |     |     | Unreasonable    | are used as a         |
| School**     |     |     | use of chemical | consequence for       |
|              |     |     | restraints      | antisocial behavior.  |
|              |     |     |                 | Restrained            |
|              |     |     |                 | individuals are in    |
|              |     |     |                 | some cases isolated   |
|              |     |     |                 | in a room with a      |
|              |     |     |                 | closed door out of    |
|              |     |     |                 | sight of staff. This  |
|              |     |     |                 | practice, absent      |
|              |     |     |                 | adequate              |
|              |     |     |                 | surveillance, places  |
|              |     |     |                 | severely handicapped  |
|              |     |     |                 | residents at great    |
|              |     |     |                 | risk of injury and is |
|              |     |     |                 | not professionally    |
|              |     |     |                 | justifiable" (p. 2).  |
|              |     |     |                 |                       |
|              |     |     |                 | "Los Lunas staff are  |
|              |     |     |                 | using physical        |
|              |     |     |                 | restraints, isolation |
|              |     |     |                 | and punishment \* \*  |
|              |     |     |                 | \* to control the     |
|              |     |     |                 | behavior of residents |
|              |     |     |                 | in lieu of necessary  |
|              |     |     |                 | training programs"    |
|              |     |     |                 | (p. 2).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Failure to      | Due to lack of        |
|              |     |     | provide         | supervision, a woman  |
|              |     |     | reasonable      | was raped, developed  |
|              |     |     | supervision and | peritonitis, and died |
|              |     |     | safety          | (p. 3).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | Facility provides     |
|              |     |     | medical and     | almost no physical    |
|              |     |     | mental health   | therapy to the large  |
|              |     |     | care            | number of patients    |
|              |     |     |                 | with body deformities |
|              |     |     |                 | who need therapy "to  |
|              |     |     |                 | prevent muscular or   |
|              |     |     |                 | skeletal breakdown"   |
|              |     |     |                 | (p. 3).               |
+--------------+-----+-----+-----------------+-----------------------+
| **W.A. Howe  | IL  | 1   | Inadequate      | "To control resident  |
| D            |     | 989 | training;       | behavior, in lieu of  |
| evelopmental |     |     | Unreasonable    | professionally        |
| Center**     |     |     | use of physical | designed training     |
|              |     |     | and chemical    | programs, staff       |
|              |     |     | restraints      | resort to chemical    |
|              |     |     |                 | and physical          |
|              |     |     |                 | restraints" (p. 3).   |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | "Due to the lack of   |
|              |     |     | medical and     | adequate medical      |
|              |     |     | mental health   | supervision of        |
|              |     |     | care            | patients, early signs |
|              |     |     |                 | of illness and        |
|              |     |     |                 | disease go undetected |
|              |     |     |                 | and/or untreated" (p. |
|              |     |     |                 | 5).                   |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Failure to      | Patient was dead on   |
|              |     |     | provide         | the floor of her room |
|              |     |     | reasonable      | for some time before  |
|              |     |     | supervision and | staff discovered her, |
|              |     |     | safety          | after staff failed to |
|              |     |     |                 | perform scheduled     |
|              |     |     |                 | room checks.          |
|              |     |     |                 |                       |
|              |     |     |                 | Another patient       |
|              |     |     |                 | strangled to death    |
|              |     |     |                 | while left            |
|              |     |     |                 | unsupervised in       |
|              |     |     |                 | improperly-applied    |
|              |     |     |                 | restraints.           |
|              |     |     |                 |                       |
|              |     |     |                 | Another resident left |
|              |     |     |                 | unsupervised ran out  |
|              |     |     |                 | of the front door and |
|              |     |     |                 | into traffic, where   |
|              |     |     |                 | she was killed (pp.   |
|              |     |     |                 | 6-7).                 |
+--------------+-----+-----+-----------------+-----------------------+
| **Great Oaks | MD  | 1   | Failure to      | Investigation found   |
| Center**     |     | 990 | provide         | that inadequate       |
|              |     |     | reasonable      | supervision           |
|              |     |     | supervision and | contributed to "an    |
|              |     |     | safety;         | alarmingly high       |
|              |     |     | Inadequate      | frequency of resident |
|              |     |     | training        | injuries" (p. 5).     |
|              |     |     |                 |                       |
|              |     |     |                 | Inadequate training   |
|              |     |     |                 | program "fails to     |
|              |     |     |                 | reduce self-abusive,  |
|              |     |     |                 | aggressive, and other |
|              |     |     |                 | maladaptive and       |
|              |     |     |                 | inappropriate         |
|              |     |     |                 | behaviors." "As a     |
|              |     |     |                 | result of these       |
|              |     |     |                 | problems, rocking,    |
|              |     |     |                 | pacing, and aimlessly |
|              |     |     |                 | wandering residents   |
|              |     |     |                 | were seen throughout  |
|              |     |     |                 | the institution.      |
|              |     |     |                 | Instances of          |
|              |     |     |                 | self-abuse were not   |
|              |     |     |                 | an uncommon sight;    |
|              |     |     |                 | observed attempts to  |
|              |     |     |                 | intervene             |
|              |     |     |                 | appropriately were    |
|              |     |     |                 | rare. Many residents  |
|              |     |     |                 | were observed to have |
|              |     |     |                 | cuts, bruises and     |
|              |     |     |                 | scrapes. Clearly,     |
|              |     |     |                 | many of the injuries  |
|              |     |     |                 | may have been         |
|              |     |     |                 | preventable with more |
|              |     |     |                 | effective programming |
|              |     |     |                 | and if more trained   |
|              |     |     |                 | staff were available" |
|              |     |     |                 | (p. 3).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | "Staff resort to      |
|              |     |     | use of physical | chemical and physical |
|              |     |     | and chemical    | restraints to control |
|              |     |     | restraints      | residents' behavior,  |
|              |     |     |                 | in lieu of            |
|              |     |     |                 | professionally        |
|              |     |     |                 | designed training     |
|              |     |     |                 | programs" (p. 3).     |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | p\. 4                 |
|              |     |     | mental health   |                       |
|              |     |     | care            |                       |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Abuse of        | A number of staff had |
|              |     |     | residents       | been disciplined or   |
|              |     |     |                 | criminally charged    |
|              |     |     |                 | for abusing patients  |
|              |     |     |                 | (p. 5 n.1).           |
+--------------+-----+-----+-----------------+-----------------------+
| **Hawaii     | HI  | 1   | Inadequate      | Staff at facility     |
| State        |     | 990 | food, clothing  | confirmed that there  |
| Hospital**   |     |     | and shelter     | was often             |
|              |     |     |                 | insufficient food;    |
|              |     |     |                 | "Staff reported that  |
|              |     |     |                 | patients are often    |
|              |     |     |                 | wrapped in blankets   |
|              |     |     |                 | and sheets due to the |
|              |     |     |                 | absence of adequate   |
|              |     |     |                 | clothing"; inadequate |
|              |     |     |                 | items for basic       |
|              |     |     |                 | personal hygiene (p.  |
|              |     |     |                 | 2).                   |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unsanitary      | "\[S\]anitation is    |
|              |     |     | conditions      | grossly inadequate.   |
|              |     |     |                 | During a tour of      |
|              |     |     |                 | \[one unit\] our      |
|              |     |     |                 | consultants had to    |
|              |     |     |                 | walk around numerous  |
|              |     |     |                 | puddles of urine. \*  |
|              |     |     |                 | \* \* \* Kitchen      |
|              |     |     |                 | facilities exhibited  |
|              |     |     |                 | signs of serious      |
|              |     |     |                 | cockroach infestation |
|              |     |     |                 | and other unsanitary  |
|              |     |     |                 | practices" (p. 3).    |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | "\[D\]rug practices   |
|              |     |     | medical and     | at HSH are seriously  |
|              |     |     | mental health   | deficient and         |
|              |     |     | care            | represent significant |
|              |     |     |                 | departures from       |
|              |     |     |                 | generally accepted    |
|              |     |     |                 | medical standards"    |
|              |     |     |                 | (p. 3).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | "In view of serious,  |
|              |     |     | use of physical | chronic and           |
|              |     |     | and chemical    | facility-wide         |
|              |     |     | restraints;     | staffing shortages,   |
|              |     |     | Inadequate      | HSH staff employ      |
|              |     |     | training        | bodily restraints --  |
|              |     |     |                 | physical restraints,  |
|              |     |     |                 | seclusion, and        |
|              |     |     |                 | chemical restraints   |
|              |     |     |                 | -- at an              |
|              |     |     |                 | unjustifiably high    |
|              |     |     |                 | level solely for      |
|              |     |     |                 | their own convenience |
|              |     |     |                 | or in lieu of         |
|              |     |     |                 | professionally        |
|              |     |     |                 | designed treatment    |
|              |     |     |                 | programs" (p. 5).     |
+--------------+-----+-----+-----------------+-----------------------+

**II. Investigations Subsequent To Enactment of the Americans with
Disabilities Act**

+--------------+-----+-----+-----------------+-----------------------+
| **Name of    | **S | **  | **Categories of | **Details**           |
| Facility**   | tat | Yea | Constitutional  |                       |
|              | e** | r** | Violations**    |                       |
+==============+=====+=====+=================+=======================+
| **Arlington  | VA  | 1   | Failure to      | "In many units, there |
| D            |     | 991 | provide         | was a pervasive smell |
| evelopmental |     |     | reasonable      | of urine. Residents   |
| Center**     |     |     | supervision and | in diapers were wet;  |
|              |     |     | safety;         | often their clothes   |
|              |     |     | unsanitary      | were soaked through   |
|              |     |     | conditions      | with urine" (p. 3).   |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | "\[W\]e observed      |
|              |     |     | medical care    | young children, some  |
|              |     |     |                 | as young as two,      |
|              |     |     |                 | whose limbs were      |
|              |     |     |                 | severely contracted"  |
|              |     |     |                 | from lack of physical |
|              |     |     |                 | therapy. "Many        |
|              |     |     |                 | residents were left   |
|              |     |     |                 | unattended in cribs,  |
|              |     |     |                 | with no efforts being |
|              |     |     |                 | made to move their    |
|              |     |     |                 | limbs, position them, |
|              |     |     |                 | or to provide any     |
|              |     |     |                 | real physical therapy |
|              |     |     |                 | services" (p. 3).     |
|              |     |     |                 |                       |
|              |     |     |                 | "The penis of another |
|              |     |     |                 | resident, a           |
|              |     |     |                 | paraplegic with an    |
|              |     |     |                 | in-dwelling Foley     |
|              |     |     |                 | catheter, was eroded  |
|              |     |     |                 | throughout its entire |
|              |     |     |                 | length due to         |
|              |     |     |                 | inadequate care and   |
|              |     |     |                 | monitoring" (p. 3).   |
|              |     |     |                 |                       |
|              |     |     |                 | Inadequate medical    |
|              |     |     |                 | care contributed to   |
|              |     |     |                 | deaths of five        |
|              |     |     |                 | residents in past six |
|              |     |     |                 | months (p. 4).        |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Abuse of        | pp. 3-4               |
|              |     |     | residents       |                       |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | pp. 8-9               |
|              |     |     | training        |                       |
+--------------+-----+-----+-----------------+-----------------------+

+--------------+-----+-----+-----------------+-----------------------+
| **Northern   | VA  | 1   | Inadequate      | In part because of    |
| Virginia     |     | 991 | training;       | inadequate training   |
| Training     |     |     | Unreasonable    | programs, use of      |
| Center**     |     |     | use of physical | restraints was        |
|              |     |     | and chemical    | pervasive: "restraint |
|              |     |     | restraints      | is used so frequently |
|              |     |     |                 | that it appears to be |
|              |     |     |                 | the treatment of      |
|              |     |     |                 | choice rather than a  |
|              |     |     |                 | technique of last     |
|              |     |     |                 | resort" (p. 4).       |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | "Serious medical      |
|              |     |     | medical and     | conditions and marked |
|              |     |     | mental health   | functional            |
|              |     |     | care            | deterioration are not |
|              |     |     |                 | comprehensively       |
|              |     |     |                 | evaluated or          |
|              |     |     |                 | effectively treated"  |
|              |     |     |                 | due to inadequate     |
|              |     |     |                 | medical system (p.    |
|              |     |     |                 | 5).                   |
+--------------+-----+-----+-----------------+-----------------------+
| **Boswell    | MS  | 1   | Inadequate      | "Boswell's staff are  |
| Retardation  |     | 991 | training;       | using restraints,     |
| Center**     |     |     |                 | isolation and         |
|              |     |     | Unreasonable    | punishment to control |
|              |     |     | use of physical | the behavior of       |
|              |     |     | and chemical    | residents in lieu of  |
|              |     |     | restraints      | necessary training    |
|              |     |     |                 | programs" (p. 2).     |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | pp. 3-4               |
|              |     |     | mental health   |                       |
|              |     |     | care            |                       |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unsanitary      | p\. 5                 |
|              |     |     | conditions      |                       |
+--------------+-----+-----+-----------------+-----------------------+
| *            | PA  | 1   | Inadequate      | Delays in emergency   |
| *Embreeville |     | 991 | medical and     | medical care          |
| Center**     |     |     | mental health   | contributed to        |
|              |     |     | care            | patient death (p. 2). |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Abuse of        | Undercover agent      |
|              |     |     | residents       | observed repeated     |
|              |     |     |                 | instances of abuse    |
|              |     |     |                 | over nine-week period |
|              |     |     |                 | (p. 3).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | p\. 2                 |
|              |     |     | training        |                       |
|              |     |     | programs        |                       |
+--------------+-----+-----+-----------------+-----------------------+
| **Agnews     | CA  | 1   | Unsanitary      | "Clients and          |
| D            |     | 991 | conditions      | residents smelled of  |
| evelopmental |     |     |                 | urine and feces" (p.  |
| Center**     |     |     |                 | 2).                   |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | Bodily restraint and  |
|              |     |     | use of physical | medication used in    |
|              |     |     | and chemical    | lieu of training      |
|              |     |     | restraints      | programs or adequate  |
|              |     |     |                 | staff supervision     |
|              |     |     |                 | (pp. 4-5).            |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | Investigation found   |
|              |     |     | medical care    | "resident after       |
|              |     |     |                 | resident whose legs   |
|              |     |     |                 | had lost all muscle   |
|              |     |     |                 | tone and whose hip,   |
|              |     |     |                 | knee and ankle joints |
|              |     |     |                 | had become            |
|              |     |     |                 | permanently fixed or  |
|              |     |     |                 | cemented in place in  |
|              |     |     |                 | a deformed frog-leg   |
|              |     |     |                 | or windswept position |
|              |     |     |                 | due to months and     |
|              |     |     |                 | even years of         |
|              |     |     |                 | inactivity" (p. 2).   |
|              |     |     |                 |                       |
|              |     |     |                 | "\[I\]nordinate       |
|              |     |     |                 | delays in diagnosing  |
|              |     |     |                 | and responding to     |
|              |     |     |                 | serious resident      |
|              |     |     |                 | illness" placed large |
|              |     |     |                 | population of         |
|              |     |     |                 | medically fragile     |
|              |     |     |                 | patients at           |
|              |     |     |                 | substantial risk (pp. |
|              |     |     |                 | 5-6)                  |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Abuse of        | Administrators        |
|              |     |     | residents       | "confirmed to us that |
|              |     |     |                 | staff abuse of        |
|              |     |     |                 | residents is a        |
|              |     |     |                 | serious problem" (p.  |
|              |     |     |                 | 2).                   |
+--------------+-----+-----+-----------------+-----------------------+
| **Memphis    | TN  | 1   | Inadequate      | Deficiencies in the   |
| Mental       |     | 992 | medical and     | facility's medical    |
| Health       |     |     | mental health   | care system           |
| Institute**  |     |     | care            | contributed to two    |
|              |     |     |                 | recent deaths (pp.    |
|              |     |     |                 | 5-6). Lack of         |
|              |     |     |                 | psychiatrists leads   |
|              |     |     |                 | to serious errors in  |
|              |     |     |                 | diagnosis and         |
|              |     |     |                 | medication            |
|              |     |     |                 | prescription (pp.     |
|              |     |     |                 | 7-8).                 |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | "Patients at MMHI are |
|              |     |     | use of physical | subjected to both an  |
|              |     |     | and chemical    | undue amount of       |
|              |     |     | restraints      | bodily restraint and  |
|              |     |     |                 | dangerous restraint   |
|              |     |     |                 | practices" (p. 9).    |
|              |     |     |                 |                       |
|              |     |     |                 | "\[S\]taff members    |
|              |     |     |                 | are placing patients  |
|              |     |     |                 | inappropriately in    |
|              |     |     |                 | physical restraints   |
|              |     |     |                 | simply because they   |
|              |     |     |                 | are confused or       |
|              |     |     |                 | disoriented."         |
|              |     |     |                 | Patients are also     |
|              |     |     |                 | restrained while      |
|              |     |     |                 | sedated, "a           |
|              |     |     |                 | substantial departure |
|              |     |     |                 | from accepted         |
|              |     |     |                 | standards of          |
|              |     |     |                 | psychiatric care"     |
|              |     |     |                 | (pp. 9-10).           |
+--------------+-----+-----+-----------------+-----------------------+
| **Arizona    | AZ  | 1   | Unreasonable    | Patients "are         |
| State        |     | 993 | use of physical | routinely put into    |
| Hospital**   |     |     | and chemical    | five-point restraints |
|              |     |     | restraints      | (a practice where a   |
|              |     |     |                 | patient is restrained |
|              |     |     |                 | on a bed and bound by |
|              |     |     |                 | the ankles, by the    |
|              |     |     |                 | wrists with the arms  |
|              |     |     |                 | to the side, and by a |
|              |     |     |                 | strap across the      |
|              |     |     |                 | abdomen) *and* placed |
|              |     |     |                 | into a locked         |
|              |     |     |                 | seclusion room" for   |
|              |     |     |                 | convenience of staff. |
|              |     |     |                 | Leaving a restrained  |
|              |     |     |                 | patient unsupervised  |
|              |     |     |                 | creates "great risk   |
|              |     |     |                 | of harm from choking  |
|              |     |     |                 | and asphyxiation" (p. |
|              |     |     |                 | 2).                   |
+--------------+-----+-----+-----------------+-----------------------+
| **Jones      | MS  | 1   | Inadequate      | Mentally ill inmates, |
| County       |     | 993 | medical and     | and mentally ill      |
| Jail**       |     |     | mental health   | persons detained      |
|              |     |     | care            | pending civil         |
|              |     |     |                 | commitment            |
|              |     |     |                 | proceedings, housed   |
|              |     |     |                 | in five-by-six foot   |
|              |     |     |                 | steel cage, sometimes |
|              |     |     |                 | for months (p. 4).    |
+--------------+-----+-----+-----------------+-----------------------+
| **           | IL  | 1   | Inadequate      | pp. 1-2               |
| Chicago-Read |     | 993 | mental health   |                       |
| Mental       |     |     | care;           |                       |
| Health       |     |     | Inadequate      |                       |
| Center**     |     |     | training        |                       |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | pp. 2-3               |
|              |     |     | use of physical |                       |
|              |     |     | restraints      |                       |
+--------------+-----+-----+-----------------+-----------------------+
| **Sonoma     | CA  | 1   | Failure to      | "As a result of       |
| D            |     | 994 | provide         | inadequate            |
| evelopmental |     |     | reasonable      | supervision,          |
| Center**     |     |     | supervision and | residents have been   |
|              |     |     | safety          | subjected to          |
|              |     |     |                 | numerous, serious,    |
|              |     |     |                 | unnecessary injuries" |
|              |     |     |                 | (p. 2).               |
|              |     |     |                 |                       |
|              |     |     |                 | In one incident, a    |
|              |     |     |                 | resident drowned in a |
|              |     |     |                 | bathtub while         |
|              |     |     |                 | unattended (p. 2).    |
|              |     |     |                 |                       |
|              |     |     |                 | In another, one       |
|              |     |     |                 | resident was attacked |
|              |     |     |                 | by another with a     |
|              |     |     |                 | knife (p. 2).         |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | Training programs are |
|              |     |     | training        | inadequate and lead   |
|              |     |     |                 | to harm from          |
|              |     |     |                 | unaddressed behaviors |
|              |     |     |                 | and to the            |
|              |     |     |                 | unnecessary and       |
|              |     |     |                 | unreasonable use of   |
|              |     |     |                 | physical and chemical |
|              |     |     |                 | restraints (pp. 4-6). |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | Improper feeding      |
|              |     |     | medical care    | practices for         |
|              |     |     |                 | severely disabled     |
|              |     |     |                 | residents "subject    |
|              |     |     |                 | them to severe risk   |
|              |     |     |                 | of choking,           |
|              |     |     |                 | aspiration and        |
|              |     |     |                 | aspiration pneumonia" |
|              |     |     |                 | (p. 3).               |
|              |     |     |                 |                       |
|              |     |     |                 | "The lack of physical |
|              |     |     |                 | therapists and        |
|              |     |     |                 | physical therapy      |
|              |     |     |                 | services has led to   |
|              |     |     |                 | the development of    |
|              |     |     |                 | undue contractures,   |
|              |     |     |                 | muscle atrophy,       |
|              |     |     |                 | inappropriate body    |
|              |     |     |                 | growth, and physical  |
|              |     |     |                 | degeneration" (p. 3). |
|              |     |     |                 |                       |
|              |     |     |                 | "The failure of staff |
|              |     |     |                 | to properly maintain  |
|              |     |     |                 | \[tracheostomy\]      |
|              |     |     |                 | tubes subjects        |
|              |     |     |                 | residents to the risk |
|              |     |     |                 | of death from         |
|              |     |     |                 | suffocation and       |
|              |     |     |                 | presents other        |
|              |     |     |                 | significant health    |
|              |     |     |                 | risks, including      |
|              |     |     |                 | infection" (p. 3).    |
+--------------+-----+-----+-----------------+-----------------------+
| **Southern & | WI  | 1   | Failure to      | Inadequate            |
| Central      |     | 994 | provide         | supervision has led   |
| Wisconsin    |     |     | reasonable      | to serious resident   |
| D            |     |     | supervision and | injuries. For         |
| evelopmental |     |     | safety          | example, one elderly  |
| Centers**    |     |     |                 | resident with         |
|              |     |     |                 | condition that        |
|              |     |     |                 | creates great risk of |
|              |     |     |                 | falling was taken to  |
|              |     |     |                 | hospital for injury   |
|              |     |     |                 | caused by a fall,     |
|              |     |     |                 | where hospital staff  |
|              |     |     |                 | noted that she had    |
|              |     |     |                 | fallen 62 times that  |
|              |     |     |                 | day (p. 10).          |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | While facility has    |
|              |     |     | medical and     | over 300 residents    |
|              |     |     | mental health   | with seizure          |
|              |     |     | care            | disorders, management |
|              |     |     |                 | practices are         |
|              |     |     |                 | dangerously           |
|              |     |     |                 | deficient; some       |
|              |     |     |                 | patients kept on      |
|              |     |     |                 | medications with      |
|              |     |     |                 | strong and dangerous  |
|              |     |     |                 | side effects for      |
|              |     |     |                 | years after they are  |
|              |     |     |                 | no longer necessary;  |
|              |     |     |                 | some are kept on      |
|              |     |     |                 | potentially dangerous |
|              |     |     |                 | drugs even though     |
|              |     |     |                 | they are not helping. |
|              |     |     |                 | For example, one      |
|              |     |     |                 | patient who had been  |
|              |     |     |                 | seizure free for six  |
|              |     |     |                 | years, was kept on    |
|              |     |     |                 | medication even       |
|              |     |     |                 | though lab results    |
|              |     |     |                 | showed that dosage    |
|              |     |     |                 | was too low to be     |
|              |     |     |                 | having any effect and |
|              |     |     |                 | even though patient   |
|              |     |     |                 | appeared to be        |
|              |     |     |                 | suffering from        |
|              |     |     |                 | dementia as a side    |
|              |     |     |                 | effect of the drug    |
|              |     |     |                 | (p. 3-4).             |
|              |     |     |                 |                       |
|              |     |     |                 | Facility's use of     |
|              |     |     |                 | psychotropic          |
|              |     |     |                 | medications           |
|              |     |     |                 | substantially departs |
|              |     |     |                 | from professional     |
|              |     |     |                 | standards, exposing   |
|              |     |     |                 | patients to           |
|              |     |     |                 | unnecessary risks of  |
|              |     |     |                 | dangerous side        |
|              |     |     |                 | effects (pp.7-9).     |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | pp. 10-13             |
|              |     |     | training;       |                       |
|              |     |     | Unreasonable    |                       |
|              |     |     | use of physical |                       |
|              |     |     | restraints      |                       |
+--------------+-----+-----+-----------------+-----------------------+
| **Eastern    | VA  | 1   | Inadequate      | pp. 1-6               |
| State        |     | 994 | mental health   |                       |
| Hospital and |     |     | care;           |                       |
| Hancock      |     |     | Inadequate      |                       |
| Geriatric    |     |     | training;       |                       |
| Center**     |     |     | Unreasonable    |                       |
|              |     |     | use of physical |                       |
|              |     |     | and chemical    |                       |
|              |     |     | restraints      |                       |
+--------------+-----+-----+-----------------+-----------------------+
| **Clover     | TN  | 1   | Failure to      | Many injuries linked  |
| Bottom       |     | 995 | provide         | to lack of            |
| D            |     |     | reasonable      | supervision; "in one  |
| evelopmental |     |     | supervision and | seven month period, a |
| Center**     |     |     | safety          | resident received     |
|              |     |     |                 | injuries on           |
|              |     |     |                 | twenty-six            |
|              |     |     |                 | occasions," half of   |
|              |     |     |                 | which required        |
|              |     |     |                 | stitches (pp. 3-4).   |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | pp. 5-8               |
|              |     |     | training        |                       |
|              |     |     | programs        |                       |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | "Residents languish   |
|              |     |     | medical and     | in carts and          |
|              |     |     | mental health   | ill-fitting           |
|              |     |     | care            | wheelchairs, which    |
|              |     |     |                 | exacerbate or allow   |
|              |     |     |                 | physical deformities  |
|              |     |     |                 | to progress -- in     |
|              |     |     |                 | some cases to a point |
|              |     |     |                 | that the deformity    |
|              |     |     |                 | may preclude a person |
|              |     |     |                 | from sitting upright  |
|              |     |     |                 | in a wheelchair"      |
|              |     |     |                 | (p.12).               |
+--------------+-----+-----+-----------------+-----------------------+
| **Fircrest   | WA  | 1   | Failure to      | "\[R\]esidents suffer |
| Residential  |     | 992 | provide         | needless serious      |
| Habilitation |     |     | reasonable      | injuries" due to lack |
| Center**     |     |     | supervision and | of supervision,       |
|              |     |     | safety          | including an average  |
|              |     |     |                 | of "410 incidents per |
|              |     |     |                 | month for some 440    |
|              |     |     |                 | residents" (p. 1).    |
|              |     |     |                 |                       |
|              |     |     |                 | "Numerous residents   |
|              |     |     |                 | were seen with fresh  |
|              |     |     |                 | wounds and            |
|              |     |     |                 | lacerations,          |
|              |     |     |                 | including shaved      |
|              |     |     |                 | spots on heads        |
|              |     |     |                 | revealing stitches    |
|              |     |     |                 | and healing injuries; |
|              |     |     |                 | red marks and         |
|              |     |     |                 | significant bruises;  |
|              |     |     |                 | multiple scabs and    |
|              |     |     |                 | scars, and large      |
|              |     |     |                 | bandages or casts"    |
|              |     |     |                 | (pp. 1-2).            |
|              |     |     |                 |                       |
|              |     |     |                 | "Our consultants      |
|              |     |     |                 | observed residents    |
|              |     |     |                 | engaged in            |
|              |     |     |                 | self-injurious        |
|              |     |     |                 | behavior, having      |
|              |     |     |                 | seizures,             |
|              |     |     |                 | masturbating in open  |
|              |     |     |                 | view -- all without   |
|              |     |     |                 | staff intervention of |
|              |     |     |                 | any kind" (p. 2).     |
|              |     |     |                 |                       |
|              |     |     |                 | "\[O\]ne resident was |
|              |     |     |                 | found dead in the day |
|              |     |     |                 | room of a living      |
|              |     |     |                 | unit; the resident    |
|              |     |     |                 | had been dead for up  |
|              |     |     |                 | to three hours before |
|              |     |     |                 | her body was          |
|              |     |     |                 | discovered by staff"  |
|              |     |     |                 | (p. 2).               |
|              |     |     |                 |                       |
|              |     |     |                 | Dangerous positioning |
|              |     |     |                 | and feeding practices |
|              |     |     |                 | risk the lives of     |
|              |     |     |                 | many residents        |
|              |     |     |                 | (p. 2).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | "Due to a lack of     |
|              |     |     | training        | human interaction and |
|              |     |     |                 | care, residents have  |
|              |     |     |                 | developed significant |
|              |     |     |                 | stereotypic,          |
|              |     |     |                 | maladaptive or        |
|              |     |     |                 | anti-social           |
|              |     |     |                 | behaviors" including  |
|              |     |     |                 | "headbanging, eating  |
|              |     |     |                 | foreign objects and   |
|              |     |     |                 | pulling hair, to      |
|              |     |     |                 | waving arms, flicking |
|              |     |     |                 | fingers and other     |
|              |     |     |                 | self-stimulatory      |
|              |     |     |                 | activities" (p. 1).   |
|              |     |     |                 |                       |
|              |     |     |                 | "Much of the          |
|              |     |     |                 | anti-social,          |
|              |     |     |                 | maladaptive behavior, |
|              |     |     |                 | injuries and use of   |
|              |     |     |                 | restraints is         |
|              |     |     |                 | attributable, in      |
|              |     |     |                 | significant part, to  |
|              |     |     |                 | the lack of \* \* \*  |
|              |     |     |                 | training programs"    |
|              |     |     |                 | (p. 5).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | Physical restraints,  |
|              |     |     | use of physical | including "staff      |
|              |     |     | and chemical    | incapacitating        |
|              |     |     | restraints      | residents by holding  |
|              |     |     |                 | them down             |
|              |     |     |                 | involuntarily on the  |
|              |     |     |                 | floor or elsewhere    |
|              |     |     |                 | for a period of       |
|              |     |     |                 | 'enforced             |
|              |     |     |                 | relaxation'" were     |
|              |     |     |                 | pervasively "used as  |
|              |     |     |                 | punishment, for the   |
|              |     |     |                 | convenience of staff  |
|              |     |     |                 | and in lieu of        |
|              |     |     |                 | training programs"    |
|              |     |     |                 | (p. 4-5).             |
+--------------+-----+-----+-----------------+-----------------------+
| **Forrest    | MS  | 1   | Inadequate      | "There are no mental  |
| County       |     | 993 | mental health   | health services       |
| Jail**       |     |     | care            | available at the jail |
|              |     |     |                 | and the holding cells |
|              |     |     |                 | into which disturbed  |
|              |     |     |                 | or mentally-ill \* \* |
|              |     |     |                 | \* prisoners are      |
|              |     |     |                 | placed pose a direct  |
|              |     |     |                 | threat to their       |
|              |     |     |                 | health and safety"    |
|              |     |     |                 | (p. 2).               |
|              |     |     |                 |                       |
|              |     |     |                 | "During the course of |
|              |     |     |                 | our tour of the jail, |
|              |     |     |                 | our consultants       |
|              |     |     |                 | observed a severely   |
|              |     |     |                 | mentally ill inmate,  |
|              |     |     |                 | clad only in an       |
|              |     |     |                 | undershirt, housed in |
|              |     |     |                 | the general           |
|              |     |     |                 | population" where he  |
|              |     |     |                 | had been waiting for  |
|              |     |     |                 | several weeks for a   |
|              |     |     |                 | transfer to a mental  |
|              |     |     |                 | health facility. "He  |
|              |     |     |                 | had allegedly eaten   |
|              |     |     |                 | some glass and was    |
|              |     |     |                 | prone to defecate on  |
|              |     |     |                 | the floor of the      |
|              |     |     |                 | cell" (pp. 2-3).      |
+--------------+-----+-----+-----------------+-----------------------+
| **Nat T.     | TN  | 1   | Inadequate      | "NTWDC, because of    |
| Winston      |     | 995 | training;       | the ineffectiveness   |
| D            |     |     | Unreasonable    | of its behavioral     |
| evelopmental |     |     | use of physical | programs, relies on   |
| Center**     |     |     | and chemical    | physical and chemical |
|              |     |     | restraints      | restraints to control |
|              |     |     |                 | residents' behavior"  |
|              |     |     |                 | (p. 3).               |
|              |     |     |                 |                       |
|              |     |     |                 | Lack of training      |
|              |     |     |                 | programs and          |
|              |     |     |                 | supervision           |
|              |     |     |                 | contribute to high    |
|              |     |     |                 | incidence of          |
|              |     |     |                 | injuries, including   |
|              |     |     |                 | "multiple bites,      |
|              |     |     |                 | lacerations, broken   |
|              |     |     |                 | bones, bruises and    |
|              |     |     |                 | abrasions. One        |
|              |     |     |                 | individual was        |
|              |     |     |                 | injured 25 times      |
|              |     |     |                 | \* \* \* in an        |
|              |     |     |                 | eight-month period.   |
|              |     |     |                 | \* \* \* Several      |
|              |     |     |                 | residents were found  |
|              |     |     |                 | attempting to cut     |
|              |     |     |                 | themselves with       |
|              |     |     |                 | knives or             |
|              |     |     |                 | razorblades" (p. 4).  |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | pp. 4-5               |
|              |     |     | medical and     |                       |
|              |     |     | mental health   |                       |
|              |     |     | care            |                       |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unsanitary      | "Sanitary conditions  |
|              |     |     | conditions      | were very poor at the |
|              |     |     |                 | food facility"; "Mold |
|              |     |     |                 | and mildew were       |
|              |     |     |                 | prevalent throughout  |
|              |     |     |                 | the refrigerators and |
|              |     |     |                 | coolers" because of   |
|              |     |     |                 | plumbing leaks (pp.   |
|              |     |     |                 | 5-6).                 |
+--------------+-----+-----+-----------------+-----------------------+
| **Greene     | TN  | 1   | Inadequate      | "Due to an inadequate |
| Valley       |     | 995 | medical and     | medical care delivery |
| D            |     |     | mental health   | system \* \* \*       |
| evelopmental |     |     | care            | residents are         |
| Center**     |     |     |                 | subjected to needless |
|              |     |     |                 | fractures, recurrent  |
|              |     |     |                 | aspiration,           |
|              |     |     |                 | preventable weight    |
|              |     |     |                 | loss, recurring       |
|              |     |     |                 | seizures, avoidable   |
|              |     |     |                 | injuries, and other   |
|              |     |     |                 | direct threats to     |
|              |     |     |                 | their health" (p. 2). |
|              |     |     |                 |                       |
|              |     |     |                 | Psychiatrists         |
|              |     |     |                 | prescribing dangerous |
|              |     |     |                 | combinations of drugs |
|              |     |     |                 | "absent any rational  |
|              |     |     |                 | justification in      |
|              |     |     |                 | violation of medical  |
|              |     |     |                 | standards" (p. 3).    |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Failure to      | Due to lack of        |
|              |     |     | provide         | supervision,          |
|              |     |     | reasonable      | residents "are        |
|              |     |     | supervision and | repeatedly 'found     |
|              |     |     | safety          | with blood' on them   |
|              |     |     |                 | from injuries that    |
|              |     |     |                 | occur outside of      |
|              |     |     |                 | staff supervision. On |
|              |     |     |                 | other occasions,      |
|              |     |     |                 | residents' severe     |
|              |     |     |                 | injuries are          |
|              |     |     |                 | discovered only       |
|              |     |     |                 | during bathing or at  |
|              |     |     |                 | bedtime" (p. 5).      |
|              |     |     |                 |                       |
|              |     |     |                 | "\[O\]ne eleven year  |
|              |     |     |                 | old boy apparently    |
|              |     |     |                 | lost the sight in one |
|              |     |     |                 | eye from repeated     |
|              |     |     |                 | headslapping which    |
|              |     |     |                 | resulted in a         |
|              |     |     |                 | detached retina.      |
|              |     |     |                 | Other residents were  |
|              |     |     |                 | noted with swollen,   |
|              |     |     |                 | disfigured features   |
|              |     |     |                 | resulting from years  |
|              |     |     |                 | of self-injury. Still |
|              |     |     |                 | others had permanent  |
|              |     |     |                 | scars from continual  |
|              |     |     |                 | self-mutilation of    |
|              |     |     |                 | their faces and arms" |
|              |     |     |                 | (p. 6).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | Many residents'       |
|              |     |     | training        | "destructive          |
|              |     |     |                 | behaviors remain      |
|              |     |     |                 | unaddressed" by       |
|              |     |     |                 | training programs.    |
|              |     |     |                 | "For example, one     |
|              |     |     |                 | resident had large    |
|              |     |     |                 | scratches on her face |
|              |     |     |                 | that had been         |
|              |     |     |                 | self-inflicted; our   |
|              |     |     |                 | consultant            |
|              |     |     |                 | psychologist was      |
|              |     |     |                 | informed that there   |
|              |     |     |                 | was no program to     |
|              |     |     |                 | modify or eliminate   |
|              |     |     |                 | this unsafe           |
|              |     |     |                 | behavior." The same   |
|              |     |     |                 | was true of another   |
|              |     |     |                 | patient who           |
|              |     |     |                 | repeatedly reopened a |
|              |     |     |                 | wound on his face and |
|              |     |     |                 | one who had a history |
|              |     |     |                 | of pica for almost 20 |
|              |     |     |                 | years (p. 7).         |
+--------------+-----+-----+-----------------+-----------------------+
| **Northern   | VA  | 1   | Inadequate      | "\[P\]sychiatric care |
| Virginia     |     | 995 | medical and     | is grossly            |
| Mental       |     |     | mental health   | inadequate" and       |
| Health       |     |     | care            | "poses direct threats |
| Institute**  |     |     |                 | to the health and     |
|              |     |     |                 | safety of patients"   |
|              |     |     |                 | (p. 3).               |
|              |     |     |                 |                       |
|              |     |     |                 | "A county hospital is |
|              |     |     |                 | located only a few    |
|              |     |     |                 | hundred yards         |
|              |     |     |                 | \[away\], yet there   |
|              |     |     |                 | have been a number of |
|              |     |     |                 | well-publicized       |
|              |     |     |                 | deaths which are      |
|              |     |     |                 | linked to substantial |
|              |     |     |                 | delays in providing   |
|              |     |     |                 | adequate medical      |
|              |     |     |                 | care" (p. 4).         |
|              |     |     |                 |                       |
|              |     |     |                 | "\[O\]ne patient died |
|              |     |     |                 | partly because of a   |
|              |     |     |                 | toxic buildup of      |
|              |     |     |                 | antidepressants in    |
|              |     |     |                 | her body. Another     |
|              |     |     |                 | patient died from     |
|              |     |     |                 | meningitis after a    |
|              |     |     |                 | psychiatrist          |
|              |     |     |                 | requested that she be |
|              |     |     |                 | seen by an internist  |
|              |     |     |                 | who failed to appear  |
|              |     |     |                 | to assess her         |
|              |     |     |                 | life-threatening      |
|              |     |     |                 | condition" (p. 4).    |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | "Due to inadequate    |
|              |     |     | use of physical | staffing, NVMHI is    |
|              |     |     | and chemical    | unable to provide     |
|              |     |     | restraints      | one-on-one monitoring |
|              |     |     |                 | for many residents    |
|              |     |     |                 | who are suicidal or   |
|              |     |     |                 | are in restraints or  |
|              |     |     |                 | seclusion and require |
|              |     |     |                 | such close            |
|              |     |     |                 | supervision. Patients |
|              |     |     |                 | have been injured     |
|              |     |     |                 | while being           |
|              |     |     |                 | restrained and are    |
|              |     |     |                 | then left unattended  |
|              |     |     |                 | by medical personnel" |
|              |     |     |                 | (p. 5).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Failure to      | "\[T\]he lack of      |
|              |     |     | provide         | supervision and care  |
|              |     |     | reasonable      | is so grave that      |
|              |     |     | supervision and | patients have been    |
|              |     |     | safety          | subjected to severe   |
|              |     |     |                 | harm, including       |
|              |     |     |                 | death" (p. 5).        |
+--------------+-----+-----+-----------------+-----------------------+
| **Northern   | VA  | 1   | Failure to      | Problems with         |
| Virginia     |     | 996 | provide         | supervision persist:  |
| Mental       |     |     | reasonable      | in the past year,     |
| Health       |     |     | supervision and | there were 70         |
| Institute**  |     |     | safety          | incidents of patients |
|              |     |     |                 | escaping from the     |
|              |     |     |                 | facility, and an      |
|              |     |     |                 | average of 27         |
|              |     |     |                 | incidents of patient  |
|              |     |     |                 | self-injury and       |
|              |     |     |                 | another 17 incidents  |
|              |     |     |                 | of patient-on-patient |
|              |     |     |                 | violence each month   |
|              |     |     |                 | (p. 7).               |
|              |     |     |                 |                       |
|              |     |     |                 | Patients repeatedly   |
|              |     |     |                 | injured themselves    |
|              |     |     |                 | even when "supposedly |
|              |     |     |                 | under careful         |
|              |     |     |                 | supervision." "One    |
|              |     |     |                 | patient committed     |
|              |     |     |                 | approximately 12 such |
|              |     |     |                 | acts of self-injury   |
|              |     |     |                 | while on 'special     |
|              |     |     |                 | observation' status." |
|              |     |     |                 |                       |
|              |     |     |                 | "One patient somehow  |
|              |     |     |                 | managed to obtain a   |
|              |     |     |                 | knife while in the    |
|              |     |     |                 | seclusion room" (p.   |
|              |     |     |                 | 7).                   |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | In some cases, "staff |
|              |     |     | training        | have resorted to      |
|              |     |     |                 | calling the police    |
|              |     |     |                 | and having patients   |
|              |     |     |                 | arrested rather than  |
|              |     |     |                 | addressing the        |
|              |     |     |                 | underlying            |
|              |     |     |                 | psychological issues" |
|              |     |     |                 | (p. 8).               |
+--------------+-----+-----+-----------------+-----------------------+
| **Central    | VA  | 1   | Failure to      | Lack of staffing and  |
| State        |     | 997 | provide         | failure to supervise  |
| Hospital**   |     |     | reasonable      | patients leads to     |
|              |     |     | supervision and | repeated incidents of |
|              |     |     | safety          | preventable injury    |
|              |     |     |                 | and suicide attempts  |
|              |     |     |                 | (pp. 3-5).            |
|              |     |     |                 |                       |
|              |     |     |                 | One patient           |
|              |     |     |                 | supposedly under      |
|              |     |     |                 | 24-hour surveillance  |
|              |     |     |                 | was found with 42     |
|              |     |     |                 | bruises over his body |
|              |     |     |                 | from unwitnessed      |
|              |     |     |                 | incidents (p. 4).     |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | pp. 5-7, 9-11         |
|              |     |     | medical and     |                       |
|              |     |     | mental health   |                       |
|              |     |     | care            |                       |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | Facility's use of     |
|              |     |     | use of physical | restraints            |
|              |     |     | and chemical    | substantially departs |
|              |     |     | restraints      | from professional     |
|              |     |     |                 | standards (pp. 7-9).  |
|              |     |     |                 |                       |
|              |     |     |                 | Patient died after    |
|              |     |     |                 | being left in         |
|              |     |     |                 | five-point restraint  |
|              |     |     |                 | on bed as punishment; |
|              |     |     |                 | her psychiatrist had  |
|              |     |     |                 | warned facility staff |
|              |     |     |                 | not to restrain her   |
|              |     |     |                 | because of seizure    |
|              |     |     |                 | risk. Nonetheless,    |
|              |     |     |                 | the "patient had      |
|              |     |     |                 | spent over 300 hours  |
|              |     |     |                 | of the last two       |
|              |     |     |                 | months of her life in |
|              |     |     |                 | restraints" (p. 8).   |
+--------------+-----+-----+-----------------+-----------------------+
| **Landmark   | FL  | 1   | Failure to      | pp. 3-4               |
| Learning     |     | 996 | provide         |                       |
| Center**     |     |     | reasonable      |                       |
|              |     |     | supervision and |                       |
|              |     |     | safety          |                       |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | pp. 4-10              |
|              |     |     | training and    |                       |
|              |     |     | mental health   |                       |
|              |     |     | care            |                       |
+--------------+-----+-----+-----------------+-----------------------+
| **Harold     | TN  | 1   | Inadequate      | pp. 3-4               |
| Jordan       |     | 996 | training and    |                       |
| Rehab.       |     |     | mental health   |                       |
| Center**     |     |     | care            |                       |
+--------------+-----+-----+-----------------+-----------------------+
| **Los        | CA  | 1   | Inadequate      | Jail system housing   |
| Angeles      |     | 997 | mental health   | approximately 1,700   |
| County       |     |     | care            | mentally ill inmates  |
| Jail**       |     |     |                 | provides virtually no |
|              |     |     |                 | treatment to most     |
|              |     |     |                 | inmates other than    |
|              |     |     |                 | medication (p. 8).    |
|              |     |     |                 |                       |
|              |     |     |                 | Jail exacerbates many |
|              |     |     |                 | inmates' illness by   |
|              |     |     |                 | placing them in       |
|              |     |     |                 | solitary confinement  |
|              |     |     |                 | for 23 hours or more  |
|              |     |     |                 | per day (p. 12).      |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Failure to      | Jail places many      |
|              |     |     | provide         | mentally ill inmates  |
|              |     |     | reasonable      | in general            |
|              |     |     | supervision and | population, but       |
|              |     |     | safety          | requires them to wear |
|              |     |     |                 | uniforms that         |
|              |     |     |                 | designate them as     |
|              |     |     |                 | mentally ill. As a    |
|              |     |     |                 | result, many inmates  |
|              |     |     |                 | suffered from         |
|              |     |     |                 | beatings and sexual   |
|              |     |     |                 | assaults (pp. 14,     |
|              |     |     |                 | 17).                  |
+--------------+-----+-----+-----------------+-----------------------+
| **Centro de  | PR  | 1   | Unsanitary      | "Many of the          |
| Reeducation  |     | 997 | conditions/     | buildings are         |
| para         |     |     |                 | dilapidated,          |
| Adultos**    |     |     | inadequate      | decaying, and lack    |
|              |     |     | shelter         | adequate plumbing and |
|              |     |     |                 | lighting." At one     |
|              |     |     |                 | facility, "the        |
|              |     |     |                 | showers do not work,  |
|              |     |     |                 | the faucets do not    |
|              |     |     |                 | work, and the toilets |
|              |     |     |                 | do not flush          |
|              |     |     |                 | properly. In order to |
|              |     |     |                 | bathe the clients,    |
|              |     |     |                 | staff dump water from |
|              |     |     |                 | water tanks into      |
|              |     |     |                 | large movable garbage |
|              |     |     |                 | cans from which the   |
|              |     |     |                 | staff manually        |
|              |     |     |                 | extract water using   |
|              |     |     |                 | smaller buckets to    |
|              |     |     |                 | pour it on the        |
|              |     |     |                 | residents." Lack of   |
|              |     |     |                 | water means that      |
|              |     |     |                 | staff cannot wash     |
|              |     |     |                 | hands after changing  |
|              |     |     |                 | some patients'        |
|              |     |     |                 | diapers (p. 3).       |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | Investigators found   |
|              |     |     | training and    | patient "sitting on   |
|              |     |     | mental health   | the floor \* \* \*    |
|              |     |     | care; Failure   | moaning to himself.   |
|              |     |     | to provide      | We noticed a stream   |
|              |     |     | reasonable      | of blood trickling    |
|              |     |     | supervision and | down his helmet.      |
|              |     |     | safety          |                       |
|              |     |     |                 | \* \* \* \* When the  |
|              |     |     |                 | nurse removed his     |
|              |     |     |                 | helmet, we discovered |
|              |     |     |                 | that \[the            |
|              |     |     |                 | patient's\] head had  |
|              |     |     |                 | been severely damaged |
|              |     |     |                 | due to years of       |
|              |     |     |                 | self-abuse and head   |
|              |     |     |                 | banging. \[He\] had   |
|              |     |     |                 | butted and rammed his |
|              |     |     |                 | head into walls and   |
|              |     |     |                 | post corners so often |
|              |     |     |                 | that he had pushed    |
|              |     |     |                 | back completely his   |
|              |     |     |                 | hair and skin on the  |
|              |     |     |                 | front half of his     |
|              |     |     |                 | head." Nonetheless,   |
|              |     |     |                 | "the Commonwealth has |
|              |     |     |                 | failed to provide     |
|              |     |     |                 | \[the patient\] with  |
|              |     |     |                 | professional          |
|              |     |     |                 | psychological or      |
|              |     |     |                 | behavioral services." |
|              |     |     |                 |                       |
|              |     |     |                 | Investigation found   |
|              |     |     |                 | many other such       |
|              |     |     |                 | individuals not       |
|              |     |     |                 | receiving adequate    |
|              |     |     |                 | care (p. 6).          |
|              |     |     |                 |                       |
|              |     |     |                 | p\. 4                 |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | "Restraints are       |
|              |     |     | use of physical | prevalent at many of  |
|              |     |     | and chemical    | the institutions      |
|              |     |     | restraints      | \* \* \* and are      |
|              |     |     |                 | related lack of       |
|              |     |     |                 | behavioral            |
|              |     |     |                 | programming,          |
|              |     |     |                 | training, and         |
|              |     |     |                 | professional mental   |
|              |     |     |                 | health intervention.  |
|              |     |     |                 | \* \* \* \* \[S\]taff |
|              |     |     |                 | use a bed sheet to    |
|              |     |     |                 | tie \[a client's\]    |
|              |     |     |                 | waist and torso to a  |
|              |     |     |                 | bench and to one of   |
|              |     |     |                 | the iron bars at the  |
|              |     |     |                 | facility to keep her  |
|              |     |     |                 | from walking around   |
|              |     |     |                 | the building and      |
|              |     |     |                 | engaging in           |
|              |     |     |                 | aggressive,           |
|              |     |     |                 | maladaptive behaviors |
|              |     |     |                 | such as biting and    |
|              |     |     |                 | hitting other         |
|              |     |     |                 | clients. Staff tie    |
|              |     |     |                 | \[another client\] up |
|              |     |     |                 | in four-point         |
|              |     |     |                 | restraints to her bed |
|              |     |     |                 | for the entire time   |
|              |     |     |                 | she is menstruating"  |
|              |     |     |                 | (p. 7)                |
+--------------+-----+-----+-----------------+-----------------------+
| **Center for | PR  | 1   | Failure to      | "On our tour of CIS,  |
| Integral     |     | 997 | provide         | we generally found a  |
| Services**   |     |     | reasonable      | dangerous environment |
|              |     |     | supervision and | for the clients. We   |
|              |     |     | safety          | noticed many CIS      |
|              |     |     |                 | residents with fresh  |
|              |     |     |                 | injuries, including   |
|              |     |     |                 | lacerations and       |
|              |     |     |                 | bruises, as well as   |
|              |     |     |                 | historical remnants   |
|              |     |     |                 | of past injuries      |
|              |     |     |                 | suffered at CIS, such |
|              |     |     |                 | as disfiguring scars. |
|              |     |     |                 | Many clients had      |
|              |     |     |                 | suffered facial       |
|              |     |     |                 | injuries or severe    |
|              |     |     |                 | injuries on the back  |
|              |     |     |                 | of their heads with   |
|              |     |     |                 | resulting deep scars  |
|              |     |     |                 | and hair loss" (p.    |
|              |     |     |                 | 3).                   |
|              |     |     |                 |                       |
|              |     |     |                 | Parents of clients    |
|              |     |     |                 | showed pictures of    |
|              |     |     |                 | "son with a very      |
|              |     |     |                 | swollen, bulbous,     |
|              |     |     |                 | purple and black eye. |
|              |     |     |                 | The father told us    |
|              |     |     |                 | that his son has      |
|              |     |     |                 | suffered a host       |
|              |     |     |                 |                       |
|              |     |     |                 | of other injuries at  |
|              |     |     |                 | CIS including a       |
|              |     |     |                 | broken nose, a severe |
|              |     |     |                 | knee injury \* \* \*  |
|              |     |     |                 | and various head      |
|              |     |     |                 | injuries, some        |
|              |     |     |                 | requiring sutures."   |
|              |     |     |                 | Another picture       |
|              |     |     |                 | showed a client with  |
|              |     |     |                 | a black eye, "a       |
|              |     |     |                 | bloody left eye       |
|              |     |     |                 | socket, bloody        |
|              |     |     |                 | swollen lips, and a   |
|              |     |     |                 | face marked with      |
|              |     |     |                 | fresh lacerations.    |
|              |     |     |                 | The mother reported   |
|              |     |     |                 | that her son has also |
|              |     |     |                 | suffered a fractured  |
|              |     |     |                 | arm, numerous         |
|              |     |     |                 | lacerations, bites,   |
|              |     |     |                 | broken teeth" and "is |
|              |     |     |                 | now limited in the    |
|              |     |     |                 | use of his hands to   |
|              |     |     |                 | one index finger and  |
|              |     |     |                 | thumb on each hand"   |
|              |     |     |                 | (p. 4).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | "\[T\]he facility     |
|              |     |     | food, shelter   | runs out of food      |
|              |     |     | and sanitation  | monthly" and "is in a |
|              |     |     |                 | state of disrepair."  |
|              |     |     |                 | "Residents have to    |
|              |     |     |                 | sleep on beds with    |
|              |     |     |                 | old, worn mattresses  |
|              |     |     |                 | that are dirty and    |
|              |     |     |                 | often wet." Toilets   |
|              |     |     |                 | do not flush. As a    |
|              |     |     |                 | result, "virtually    |
|              |     |     |                 | all of the toilets on |
|              |     |     |                 | the men's side had    |
|              |     |     |                 | urine and/or feces in |
|              |     |     |                 | them, producing a     |
|              |     |     |                 | health hazard and an  |
|              |     |     |                 | unpleasant,           |
|              |     |     |                 | malodorous            |
|              |     |     |                 | environment" (pp.     |
|              |     |     |                 | 5-6).                 |
|              |     |     |                 |                       |
|              |     |     |                 | "Staff admitted to us |
|              |     |     |                 | that they routinely   |
|              |     |     |                 | bathe the male        |
|              |     |     |                 | clients by lining     |
|              |     |     |                 | them up naked and     |
|              |     |     |                 | hosing them down in   |
|              |     |     |                 | groups \* \* \* with  |
|              |     |     |                 | a garden hose" (pp.   |
|              |     |     |                 | 6-7).                 |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Abuse of        | Facility              |
|              |     |     | residents       | administrator         |
|              |     |     |                 | acknowledged problems |
|              |     |     |                 | with protecting       |
|              |     |     |                 | clients from staff    |
|              |     |     |                 | abuse and stated that |
|              |     |     |                 | "one CIS staff member |
|              |     |     |                 | had recently been     |
|              |     |     |                 | convicted for         |
|              |     |     |                 | sodomizing a client"  |
|              |     |     |                 | (p. 3).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | "CIS frequently uses  |
|              |     |     | use of physical | restraints as a       |
|              |     |     | and chemical    | substitute for        |
|              |     |     | restraints      | meaningful activity   |
|              |     |     |                 | during the day or for |
|              |     |     |                 | appropriate programs  |
|              |     |     |                 | to address            |
|              |     |     |                 | maladaptive behaviors |
|              |     |     |                 | \* \* \* to control   |
|              |     |     |                 | residents they        |
|              |     |     |                 | routinely use         |
|              |     |     |                 | mechanical            |
|              |     |     |                 | restraints, such as   |
|              |     |     |                 | leather cuff belts    |
|              |     |     |                 | (which are tied to    |
|              |     |     |                 | the heavy metal beds  |
|              |     |     |                 | around the limbs of   |
|              |     |     |                 | the clients),         |
|              |     |     |                 | restraint vests and   |
|              |     |     |                 | straight jackets, and |
|              |     |     |                 | restraint nets" (p.   |
|              |     |     |                 | 8).                   |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | Facility "routinely   |
|              |     |     | medical and     | runs out of certain   |
|              |     |     | mental health   | critical drugs" such  |
|              |     |     | care            | as anti-convulsant    |
|              |     |     |                 | medications for       |
|              |     |     |                 | epileptic patients,   |
|              |     |     |                 | who suffered repeated |
|              |     |     |                 | untreated seizures as |
|              |     |     |                 | a result (pp. 5, 10). |
|              |     |     |                 |                       |
|              |     |     |                 | "Most of the          |
|              |     |     |                 | residents are put on  |
|              |     |     |                 | psychotropic          |
|              |     |     |                 | medication simply to  |
|              |     |     |                 | control their         |
|              |     |     |                 | behaviors without     |
|              |     |     |                 | appropriate           |
|              |     |     |                 | psychiatric           |
|              |     |     |                 | assessments,          |
|              |     |     |                 | diagnoses, treatment  |
|              |     |     |                 | and monitoring" (p.   |
|              |     |     |                 | 9).                   |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | pp. 7-9               |
|              |     |     | training        |                       |
|              |     |     | programs        |                       |
+--------------+-----+-----+-----------------+-----------------------+
| **Hammond    | LA  | 1   | Failure to      | Client went for weeks |
| D            |     | 997 | provide         | with an undetected    |
| evelopmental |     |     | reasonable      | fractured shoulder,   |
| Center and   |     |     | supervision and | even though obviously |
| Pinecrest    |     |     | safety          | in pain and bruised   |
| D            |     |     |                 | (p. 6).               |
| evelopmental |     |     |                 |                       |
| Center**     |     |     |                 |                       |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Abuse of        | Four staff members    |
|              |     |     | residents       | recently indicted for |
|              |     |     |                 | abusing residents,    |
|              |     |     |                 | many other incidents  |
|              |     |     |                 | of abuse documented   |
|              |     |     |                 | by facility (pp. 4-5, |
|              |     |     |                 | 15-16).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | "A staff member left  |
|              |     |     | use of physical | a client in full      |
|              |     |     | and chemical    | mechanical restraints |
|              |     |     | restraints      | unattended for hours  |
|              |     |     |                 | in a room with a      |
|              |     |     |                 | known aggressor"      |
|              |     |     |                 | while staff watched   |
|              |     |     |                 | television (p. 5).    |
|              |     |     |                 |                       |
|              |     |     |                 | Failure to provide    |
|              |     |     |                 | adequate training     |
|              |     |     |                 | programs leads to     |
|              |     |     |                 | some patients being   |
|              |     |     |                 | in restraints         |
|              |     |     |                 | virtually non-stop    |
|              |     |     |                 | (p. 12).              |
|              |     |     |                 |                       |
|              |     |     |                 | Failure to monitor    |
|              |     |     |                 | clients in restraints |
|              |     |     |                 | led to injuries (p.   |
|              |     |     |                 | 12-13).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | As a result of        |
|              |     |     | training        | insufficient training |
|              |     |     |                 | programs, "residents' |
|              |     |     |                 | aberrant behaviors    |
|              |     |     |                 | continue unabated,    |
|              |     |     |                 | often get worse, and  |
|              |     |     |                 | lead frequently to    |
|              |     |     |                 | other destructive     |
|              |     |     |                 | behaviors" (p. 10).   |
|              |     |     |                 |                       |
|              |     |     |                 | Staff in one unit     |
|              |     |     |                 | withheld food from    |
|              |     |     |                 | clients if they       |
|              |     |     |                 | misbehaved (p. 10).   |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | pp. 13-15             |
|              |     |     | medical and     |                       |
|              |     |     | mental health   |                       |
|              |     |     | care            |                       |
+--------------+-----+-----+-----------------+-----------------------+
| **Holly      | MD  | 1   | Failure to      | Improper feeding      |
| Center**     |     | 998 | provide         | techniques for        |
|              |     |     | reasonable      | severely disabled     |
|              |     |     | supervision and | residents contributed |
|              |     |     | safety;         | to a constant rate of |
|              |     |     | Inadequate      | hospitalization and   |
|              |     |     | medical care    | several deaths from   |
|              |     |     |                 | choking and severe    |
|              |     |     |                 | respiratory problems  |
|              |     |     |                 | (pp. 3-5).            |
|              |     |     |                 |                       |
|              |     |     |                 | Systemic inadequacies |
|              |     |     |                 | in medical care       |
|              |     |     |                 | contributed to the    |
|              |     |     |                 | recent death of a     |
|              |     |     |                 | severely handicapped  |
|              |     |     |                 | and retarded resident |
|              |     |     |                 | (pp. 7-8).            |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | pp. 8-13              |
|              |     |     | training        |                       |
+--------------+-----+-----+-----------------+-----------------------+
| **Davies     | KY  | 1   | Inadequate      | Jail provides no      |
| County       |     | 998 | mental health   | mental health         |
| Detention    |     |     | care            | services. "During our |
| Center**     |     |     |                 | tour, we observed     |
|              |     |     |                 | several acutely       |
|              |     |     |                 | mentally ill          |
|              |     |     |                 | individuals at the    |
|              |     |     |                 | main jail, obviously  |
|              |     |     |                 | in need of            |
|              |     |     |                 | psychiatric           |
|              |     |     |                 | evaluation and        |
|              |     |     |                 | treatment, being left |
|              |     |     |                 | for days at a time in |
|              |     |     |                 | 'observation' --      |
|              |     |     |                 | i.e., in a cell by    |
|              |     |     |                 | themselves. One       |
|              |     |     |                 | inmate was observed   |
|              |     |     |                 | singing for hours on  |
|              |     |     |                 | end, and eating his   |
|              |     |     |                 | own feces" (p. 11).   |
|              |     |     |                 |                       |
|              |     |     |                 | As a result of        |
|              |     |     |                 | inadequate mental     |
|              |     |     |                 | health and suicide    |
|              |     |     |                 | prevention system, a  |
|              |     |     |                 | 15-year-old boy       |
|              |     |     |                 | killed himself (p.    |
|              |     |     |                 | 12).                  |
+--------------+-----+-----+-----------------+-----------------------+
| **New Castle | IN  | 1   | Failure to      | "Injuries are         |
| D            |     | 998 | provide         | pervasive throughout  |
| evelopmental |     |     | reasonable      | the campus. With a    |
| Center**     |     |     | supervision and | census of 164         |
|              |     |     | safety;         | individuals, New      |
|              |     |     | Inadequate      | Castle averaged over  |
|              |     |     | training        | 1,000 resident        |
|              |     |     |                 | injuries/incidents on |
|              |     |     |                 | a monthly basis";     |
|              |     |     |                 | over a four-month     |
|              |     |     |                 | period, "88 percent   |
|              |     |     |                 | of New Castle         |
|              |     |     |                 | residents sustained   |
|              |     |     |                 | injuries; 82 percent  |
|              |     |     |                 | of the residents were |
|              |     |     |                 | injured more than one |
|              |     |     |                 | time during this      |
|              |     |     |                 | period" (pp. 2-3).    |
|              |     |     |                 |                       |
|              |     |     |                 | In a single month,    |
|              |     |     |                 | one resident was      |
|              |     |     |                 | assaulted 20 times    |
|              |     |     |                 | and another was       |
|              |     |     |                 | assaulted 19 times    |
|              |     |     |                 | (p. 3).               |
|              |     |     |                 |                       |
|              |     |     |                 | "Other injuries are   |
|              |     |     |                 | unwitnessed by staff, |
|              |     |     |                 | including bone        |
|              |     |     |                 | fractures, bloodied   |
|              |     |     |                 | noses and body        |
|              |     |     |                 | bruises" (p. 3).      |
|              |     |     |                 |                       |
|              |     |     |                 | "\[W\]e witnessed     |
|              |     |     |                 | instances in which    |
|              |     |     |                 | residents engaged in  |
|              |     |     |                 | aggressive and        |
|              |     |     |                 | self-injurious        |
|              |     |     |                 | behaviors (including  |
|              |     |     |                 | head slapping, hand   |
|              |     |     |                 | biting, eye gouging   |
|              |     |     |                 | and table banging)    |
|              |     |     |                 | without appropriate   |
|              |     |     |                 | and timely staff      |
|              |     |     |                 | intervention (p. 4).  |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Inadequate      | While half of         |
|              |     |     | medical and     | residents have        |
|              |     |     | mental health   | epilepsy, facility's  |
|              |     |     | care            | seizure management    |
|              |     |     |                 | practices dangerously |
|              |     |     |                 | depart from accepted  |
|              |     |     |                 | medical practices,    |
|              |     |     |                 | increasing risk of    |
|              |     |     |                 | liver and permanent   |
|              |     |     |                 | brain damage (pp.     |
|              |     |     |                 | 5-6). Insufficient    |
|              |     |     |                 | levels of nursing     |
|              |     |     |                 | staff lead to         |
|              |     |     |                 | failures to identify  |
|              |     |     |                 | and treat serious     |
|              |     |     |                 | medical problems (pp. |
|              |     |     |                 | 6-7).                 |
+--------------+-----+-----+-----------------+-----------------------+
| **Georgia    | GA  | 1   | Inadequate      | Inadequate mental     |
| Juvenile     |     | 998 | mental health   | health care provided  |
| Facilities** |     |     | care            | throughout State's    |
|              |     |     |                 | juvenile detention    |
|              |     |     |                 | facilities and        |
|              |     |     |                 | training schools (pp. |
|              |     |     |                 | 9-11, 19-22).         |
|              |     |     |                 |                       |
|              |     |     |                 | Many mentally ill     |
|              |     |     |                 | youth "end up locked  |
|              |     |     |                 | in security units     |
|              |     |     |                 | where they spend      |
|              |     |     |                 | large portions of     |
|              |     |     |                 | their days isolated   |
|              |     |     |                 | in small rooms with   |
|              |     |     |                 | few activities. In    |
|              |     |     |                 | these units, and      |
|              |     |     |                 | elsewhere, they are   |
|              |     |     |                 | often restrained,     |
|              |     |     |                 | hit, shackled, put in |
|              |     |     |                 | restraint chairs for  |
|              |     |     |                 | hours, and sprayed    |
|              |     |     |                 | with \[pepper spray\] |
|              |     |     |                 | by staff who lack the |
|              |     |     |                 | training and          |
|              |     |     |                 | resources to respond  |
|              |     |     |                 | appropriately to the  |
|              |     |     |                 | manifestations of     |
|              |     |     |                 | mental illness" (p.   |
|              |     |     |                 | 20).                  |
+--------------+-----+-----+-----------------+-----------------------+
| **Western    | VA  | 1   | Inadequate      | Facility fails to     |
| State        |     | 999 | medical and     | identify and address  |
| Hospital**   |     |     | mental health   | mental health needs,  |
|              |     |     | care            | leading to inadequate |
|              |     |     |                 | treatment and risk of |
|              |     |     |                 | harm. In one case,    |
|              |     |     |                 | patient identified as |
|              |     |     |                 | suicidal was given no |
|              |     |     |                 | treatment to address  |
|              |     |     |                 | suicidal urges and    |
|              |     |     |                 | subsequently hanged   |
|              |     |     |                 | himself in his room   |
|              |     |     |                 | (pp. 3-4).            |
|              |     |     |                 |                       |
|              |     |     |                 | Physicians are not    |
|              |     |     |                 | permitted to          |
|              |     |     |                 | prescribe some        |
|              |     |     |                 | medically-indicated   |
|              |     |     |                 | drugs for budget      |
|              |     |     |                 | reasons (pp. 5-6).    |
|              |     |     |                 |                       |
|              |     |     |                 | Inadequate medical    |
|              |     |     |                 | care contributed to   |
|              |     |     |                 | several recent deaths |
|              |     |     |                 | (p. 8).               |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Unreasonable    | Facility uses         |
|              |     |     | use of physical | excessive and         |
|              |     |     | and chemical    | dangerous restraint   |
|              |     |     | restraints      | techniques (p. 7).    |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Failure to      | Combination of        |
|              |     |     | provide         | inadequate staffing   |
|              |     |     | reasonable      | and training for      |
|              |     |     | supervision and | patients results in   |
|              |     |     | safety;         | high level of         |
|              |     |     | Inadequate      | violence and          |
|              |     |     | training        | injuries. Within one  |
|              |     |     |                 | 90-day period, the    |
|              |     |     |                 | facility of 370       |
|              |     |     |                 | patients "recorded    |
|              |     |     |                 | 169 altercations, 81  |
|              |     |     |                 | instances of          |
|              |     |     |                 | self-injurious        |
|              |     |     |                 | behavior, and 128     |
|              |     |     |                 | falls" as well as 8   |
|              |     |     |                 | suicide attempts and  |
|              |     |     |                 | 13 escapes. In the    |
|              |     |     |                 | recent past, one      |
|              |     |     |                 | patient committed     |
|              |     |     |                 | suicide and was dead  |
|              |     |     |                 | for an hour before    |
|              |     |     |                 | being discovered (p.  |
|              |     |     |                 | 9).                   |
+--------------+-----+-----+-----------------+-----------------------+
| **Rainier    | WA  | 1   | Unreasonable    | "In 1998, Rainier     |
| School &     |     | 999 | use of physical | logged many thousands |
| Frances      |     |     | and chemical    | of hours of restraint |
| Haddon       |     |     | restraints      | use, without          |
| Morgan       |     |     |                 | demonstrating that    |
| Center**     |     |     |                 | less restrictive      |
|              |     |     |                 | interventions were    |
|              |     |     |                 | tried or that         |
|              |     |     |                 | underlying behavioral |
|              |     |     |                 | support plans and     |
|              |     |     |                 | services were         |
|              |     |     |                 | adequate." For        |
|              |     |     |                 | example, the          |
|              |     |     |                 | facility's response   |
|              |     |     |                 | to patients           |
|              |     |     |                 | attempting to eat     |
|              |     |     |                 | inedible objects      |
|              |     |     |                 | (pica) or digging at  |
|              |     |     |                 | their eyes or rectums |
|              |     |     |                 | was to place patients |
|              |     |     |                 | in nearly constant    |
|              |     |     |                 | restraints: one       |
|              |     |     |                 | patient with pica     |
|              |     |     |                 | behavior spent 2,000  |
|              |     |     |                 | hours in a restraint  |
|              |     |     |                 | suit over a six-month |
|              |     |     |                 | period; another       |
|              |     |     |                 | averaged 600 hours    |
|              |     |     |                 | per month for pica    |
|              |     |     |                 | and rectal digging;   |
|              |     |     |                 | another averaged 22   |
|              |     |     |                 | hours per day in the  |
|              |     |     |                 | suit for rectal       |
|              |     |     |                 | digging (pp. 2-3).    |
+--------------+-----+-----+-----------------+-----------------------+
|              |     |     | Failure to      | "Without the          |
|              |     |     | provide         | necessary specialized |
|              |     |     | reasonable      | treatment, \* \* \*   |
|              |     |     | supervision and | residents have        |
|              |     |     | safety;         | suffered serious      |
|              |     |     | Inadequate      | harm. Residents       |
|              |     |     | training;       | \* \* \* have blinded |
|              |     |     | Inadequate      | themselves from       |
|              |     |     | medical and     | chronic behaviors,    |
|              |     |     | mental health   | such as eye poking    |
|              |     |     | care            | and head banging,     |
|              |     |     |                 | that the facilities   |
|              |     |     |                 | have not addressed in |
|              |     |     |                 | accordance with       |
|              |     |     |                 | accepted professional |
|              |     |     |                 | standards" (p. 7).    |
|              |     |     |                 |                       |
|              |     |     |                 | Numerous incidents of |
|              |     |     |                 | unaddressed,          |
|              |     |     |                 | dangerous behaviors,  |
|              |     |     |                 | such as pica,         |
|              |     |     |                 | head-banging, and     |
|              |     |     |                 | eye-poking (pp. 7-8). |
|              |     |     |                 |                       |
|              |     |     |                 | In one facility,      |
|              |     |     |                 | "approximately 20     |
|              |     |     |                 | percent of all Morgan |
|              |     |     |                 | residents were        |
|              |     |     |                 | admitted to the       |
|              |     |     |                 | emergency room or     |
|              |     |     |                 | hospital, some on     |
|              |     |     |                 | more than one         |
|              |     |     |                 | occasion, for         |
|              |     |     |                 | treatment of          |
|              |     |     |                 | injuries" in a        |
|              |     |     |                 | one-year period;      |
|              |     |     |                 | during same year      |
|              |     |     |                 | residents in another  |
|              |     |     |                 | facility "suffered    |
|              |     |     |                 | approximately 77      |
|              |     |     |                 | lacerations requiring |
|              |     |     |                 | sutures (32 involving |
|              |     |     |                 | the head), 37 bone    |
|              |     |     |                 | fractures, 8          |
|              |     |     |                 | dislocated shoulders, |
|              |     |     |                 | and 2 incidents of    |
|              |     |     |                 | finger amputation"    |
|              |     |     |                 | (p. 10).              |
+--------------+-----+-----+-----------------+-----------------------+
| **Clark      | NV  | 1   | Inadequate      | Jail failed to        |
| County       |     | 999 | mental health   | identify adequately   |
| Detention    |     |     | care            | mentally ill inmates  |
| Center**     |     |     |                 | and provide           |
|              |     |     |                 | appropriate           |
|              |     |     |                 | treatment, resulting  |
|              |     |     |                 | in serious harm and   |
|              |     |     |                 | suicides (pp. 5-6).   |
+--------------+-----+-----+-----------------+-----------------------+

[^1]: 1 Congress instructed the Attorney General to issue regulations to
    implement Title II, based on prior regulations promulgated under
    Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. See 42
    U.S.C. 12134.

[^2]: 2 In other recent federalism cases, Congress likewise sought to
    "place States on the same footing as private parties."
    [Kimel,]{.underline} 528 U.S. at 82 (citation omitted); see
    [Alden]{.underline} v. [Maine]{.underline}, 527 U.S. 706, (1999)
    (Fair Labor Standards Act of 1968); [Florida Prepaid Postsecondary
    Educ. Expense Bd.]{.underline} v. [College Sav. Bank]{.underline},
    527 U.S. 627, 631-632 (1999) (patent infringement); [College Sav.
    Bank]{.underline} v. [Florida Prepaid Postsecondary Educ. Expense
    Bd.]{.underline}, 527 U.S. 666 (1999) (Lanham Act liability).

[^3]: 3 See [Atkin]{.underline} v. [Kansas]{.underline}, 191 U.S. 207,
    220-221 (1903); see also [Lawrence County]{.underline} v.
    [Lead-Deadwood Sch. Dist.]{.underline}, 469 U.S. 256, 270-271 (1985)
    (Rehnquist, J., dissenting).

[^4]: 4 See 383 U.S. at 312 n.12 (discussing discrimination by
    Montgomery County Registrar); [id]{.underline}. at 312 n.13
    (discussing discrimination by Panola County registrar and Forrest
    County registrar); [id]{.underline}. at 313 n.14 (citing a case that
    documents discrimination by the Dallas County Board of Registrars);
    [id]{.underline}. at 313 n.15 (citing a case that documents
    discrimination by the Walker County registrar); [id]{.underline}. at
    314 ("certain local officials have defied and evaded court orders or
    have simply closed their registration offices to freeze the voting
    rolls"); [id]{.underline}. at 314-315 (discussing discrimination in
    Selma, Alabama and Dallas County).

[^5]: 5 See, [e.g.]{.underline}, [Voting Rights: Hearings Before
    Subcomm. No. 5 of the House Comm. on the Judiciary]{.underline},
    89th Cong., 1st Sess. 5-8 (1965) (extensive voting discrimination by
    local officials in Selma, Alabama, and Dallas County);
    [id]{.underline}. at 8 (local sheriff and deputy sheriff in
    Mississippi, beat three black men when they attempted to register to
    vote); [id]{.underline}. at 36 (21 of 22 voting discrimination
    lawsuits filed by the Department of Justice in Mississippi were
    against counties); [Voting Rights: Hearings Before the Senate Comm.
    on the Judiciary]{.underline}, 89th Cong., 1st Sess. 12 (1965)
    (discrimination in Clarke County, Mississippi, and Wilcox County,
    Alabama); H.R. Rep. No. 439, 89th Cong., 1st Sess. 16 (1965)
    (resistance of parish registrars to registration of black citizens);
    S. Rep. No. 162, 89th Cong., 1st Sess. Pt. 3, at 7-9 (1965)
    (discrimination and litigation in Dallas County, Alabama);
    [id]{.underline}. at 12 (counties' discriminatory use of "good moral
    character" test); [id]{.underline}. at 33 (county officials'
    discriminatory use of poll tax).

[^6]: 6 See Rehabilitation Amendments of 1984, Pub. L. No. 98-221, Title
    I, § 141(a), 98 Stat. 26; Rehabilitation Act Amendments of 1986,
    Pub. L. No. 99-506, Title V, § 502(b), 100 Stat. 1829.

[^7]: 7 Twenty percent of persons with disabilities \-- more than twice
    the percentage for the general population \-- live below the poverty
    line, and 15% of disabled persons had incomes of \$15,000 or less.
    [Threshold]{.underline} 13-14. Forty percent of persons with
    disabilities \-- triple the rate for the general population \-- did
    not finish high school. Only 29% of persons with disabilities had
    some college education, compared with 48% for the general
    population. [Id]{.underline}. at 14. Two-thirds of all working-age
    persons with disabilities were unemployed; only one in four worked
    full-time. [Ibid]{.underline}. Two-thirds of persons with
    disabilities had not attended a movie or sporting event in the past
    year; three-fourths had not seen live theater or music performances;
    persons with disabilities were three times more likely not to eat in
    restaurants; and 13% of persons with disabilities never go to
    grocery stores. [Id]{.underline}. at 16-17.

[^8]: 8See also Task Force Report 16. The Task Force submitted those
    "several thousand documents" evidencing "massive discrimination and
    segregation in all aspects of life" to Congress, 2 [Leg.
    Hist.]{.underline} 1324-1325, as part of the official legislative
    history of the Disabilities Act. See [id]{.underline}. at 1336,
    1389. Those documents -- mostly handwritten letters and commentaries
    collected during the Task Force's forums -- were part of the
    official legislative history of the ADA. *See* *id*. at 1336, 1389.
    Both the majority and dissent in [Garrett]{.underline} relied on
    these documents, *see* 531 U.S. at 369-370, with dissent citing to
    them by State and Bates stamp number, id. at 389-424 (Breyer, J.,
    Dissenting), a practice we follow.

[^9]: 9 Those included the United States Civil Rights Comm'n,
    [Accommodating the Spectrum of Individual Abilities]{.underline}
    (1983); two polls conducted by Louis Harris & Assoc., [The ICD
    Survey Of Disabled Americans: Bringing Disabled Americans into the
    Mainstream]{.underline} (1986), and Louis Harris & Assocs., [The ICD
    Survey II: Employing Disabled Americans]{.underline} (1987); a
    report by the Presidential Commission on the Human Immunodeficiency
    Virus Epidemic (1988); and eleven interim reports submitted by the
    Task Force.

[^10]: 0^10^ See also [Cleburne]{.underline}, 473 U.S. at 463 (Marshall,
    J) (state laws deemed persons with mental disorders "unfit for
    citizenship"); see also Note, [Mental Disability and the Right to
    Vote]{.underline}, 88 Yale L.J. 1644 (1979).

[^11]: 1^1^ [Spectrum]{.underline} 20, 33-34.

[^12]: 2^12^ See also [State]{.underline} v. [Board of
    Educ.]{.underline}, 172 N.W. 153, 153 (Wis. 1919) (approving
    exclusion of a boy with cerebral palsy from public school because he
    "produces a depressing and nauseating effect upon the teachers and
    school children") (noted at 2 [Leg. Hist.]{.underline} 2243); see
    generally T. Cook, [The Americans with Disabilities Act: The Move to
    Integration]{.underline}, 64 Temp. L. Rev. 393, 399-407 (1991).

[^13]: 3^13^ See also 3 [Leg. Hist.]{.underline} 2020 (Att'y Gen.
    Thornburgh) ("But persons with disabilities are all too often not
    allowed to participate because of stereotypical notions held by
    others in society \-- notions that have, in large measure, been
    created by ignorance and maintained by fear."); 2 [Leg.
    Hist.]{.underline} 1606 (Arlene Mayerson) ("Most people assume that
    disabled children are excluded from school or segregated from their
    non-disabled peers because they cannot learn or because they need
    special protection. Likewise, the absence of disabled co-workers is
    simply considered confirmation of the obvious fact that disabled
    people can't work. These assumptions are deeply rooted in
    history.").

[^14]: 4^14^ See also 136 Cong. Rec. H2480 (daily ed. May 17, 1990)
    (Rep. McDermott) (school board excluded Ryan White, who had AIDS,
    not because the board "thought Ryan would infect the others" but
    because "some parents were afraid he would"); UT 1556 (disabled
    student refused admission to first grade because teacher refused to
    teach student with a disability); NY 1123 (three elementary schools
    had practice of locking mentally disabled children in a 3'x 3'x 7'
    box for punishment); [Spectrum]{.underline} 28, 29 ("a great many
    handicapped children" are "excluded from the public schools" or
    denied "recreational, athletic, and extracurricular activities
    provided for non-handicapped students"); [Education for All
    Handicapped Children, 1973-1974: Hearings Before the Subcomm. on the
    Handicapped of the Senate Comm. on Labor & Pub.
    Welfare]{.underline}, 93d Cong., 1st Sess. 793 (1973) (Christine
    Griffith) (first-grade student "was spanked every day" because her
    deafness prevented her from following instructions);
    [id]{.underline}. at 400 (Mrs. R. Walbridge) (student with spina
    bifida barred from the school library for two years "because her
    braces and crutches made too much noise"). For additional examples,
    see [id]{.underline}. at 384 (Peter Hickey); 2 [Leg.
    Hist.]{.underline} 989 (Mary Ella Linden); PA 1432; NM 1090; OR
    1375; AL 32; SD 1481; MO 1014; NC 1144; [Garrett]{.underline}, 531
    U.S. at 391-424 (Breyer, J., dissenting).

[^15]: 5^15^ See also 2 [Leg. Hist.]{.underline} 1224 (Denise Karuth)
    (state university professor asked a blind student enrolled in his
    music class "'What are you doing in this program if you can't see'";
    student was forced to drop class); [id]{.underline}. at 1225 (state
    commission refuses to sponsor legally blind student for masters
    degree in rehabilitation counseling because "the State would not
    hire blind rehabilitation counselors, '\[s\]ince,' and this is a
    quote: 'they could not drive to see their clients'"); J. Shapiro,
    [No Pity]{.underline} 45 (1993) (Dean of the University of
    California at Berkeley told a prospective student that "\[w\]e've
    tried cripples before and it didn't work"). For additional examples,
    see SD 1476; LA 999; MO 1010; WIS 1757; CO 283;
    [Garrett]{.underline}, 531 U.S. at 391-424 (Breyer, J., dissenting);
    [Cal. Report]{.underline} 138; Appendix A, [infra]{.underline}.

[^16]: 6^16^ One voter with a disability was "told to go home once when
    I came to the poll and found the voting machines down a flight of
    stairs with no paper ballots available"; on another occasion that
    voter "had to shout my choice of candidates over the noise of a
    crowd to a precinct judge who pushed the levers of the machine for
    me, feeling all the while as if I had to offer an explanation for my
    decisions." [Equal Voting Hearings]{.underline} 45. "A blind woman,
    a new resident of Alabama, went to vote and was refused instructions
    on the operation of the voting machine." AL 16; see also
    [Garrett]{.underline}, 531 U.S. at 391-424 (Breyer, J., dissenting)
    (citing additional examples); [Help America Vote Act of 2001:
    Hearing Before the House Comm. on the Judiciary]{.underline}, 107th
    Cong., 1st Sess. 13 (Dec. 5, 2001) (James Dickson) ("I am blind, and
    I have never cast a secret ballot."); [id]{.underline}. at 15
    ("Twice in Massachusetts and once in California, while relying on a
    poll worker to cast my ballot, the poll worker attempted to change
    my mind about whom I was voting for. \* \* \* \[T\]o this day I
    really do not know if they cast my ballot according to my wishes.").

[^17]: 7^17^ See also [Equal Voting Hearings]{.underline} 17, 461
    (criticizing States' imposition of special absentee voting
    requirements on persons with disabilities). For examples of
    inaccessible polling places, see 2 [Leg. Hist.]{.underline} 1767
    (Rick Edwards); WIS 1756; MT 1024, 1026-1027; MI 922; ND 1185; DE
    307; WIS 1756; AL 16; [Garrett]{.underline}, 531 U.S. at 395-424
    (Breyer, J., dissenting); FEC, [Polling Place Accessibility in the
    1988 General Election]{.underline} 7 (1989) (21% of polling places
    inaccessible; 27% were inaccessible in 1986 elections).

[^18]: 8^18^ See ID 506 (adult victims of abuse with developmental
    disabilities denied equal rights to testify in court); Consol. Gov't
    C.A. Br. at 3, [Lane]{.underline} v. [Tennessee]{.underline}, No.
    98-6730 (6th Cir.) (Lane arrested for two misdemeanors and ordered
    to report for hearing at inaccessible courthouse; the first day he
    crawled up the stairs to the courtroom; the second day he was
    arrested for failure to appear when he refused to crawl or be
    carried up the stairs; hearing later held with defendant forced to
    remain outside while counsel shuttled between him and the
    courtroom). For additional examples of inaccessible courthouses and
    court proceedings, see AL 15; WV1745; MA 812; CA 254; CO 273; ID
    528; PA 1394; LA 998; WA 1690; MS 990; SD 1475; NC 1161-1164; L 15;
    DE 345; GA 374; HI 455; [Garrett]{.underline}, 531 U.S. at 391-424
    (Breyer, J., dissenting).

[^19]: 9^19^ See [Spectrum]{.underline} 39 (76% of State-owned buildings
    offering services and programs for the general public are
    inaccessible and unusable for persons with disabilities); [May 1989
    Hearings]{.underline} 663 (Dr. Mary Lynn Fletcher) (to attend town
    meetings, "I (or anyone with a severe mobility impairment) must
    crawl up three flights of circular stairs to the 'Court Room.' In
    this room all public business is conducted by the county government
    whether on taxes, zoning, schools or any type of public business.");
    AK 73 ("We have major problems in Seward, regarding accessibility to
    City and State buildings for the handicapped and disabled."; City
    Manager responded that "\[H\]e runs this town \* \* \* and no one is
    going to tell him what to do."). For additional examples of
    inaccessible government officials and offices, see H.R. Rep. No.
    485, [supra]{.underline}, Pt. 2, at 40; [May 1989
    Hearings]{.underline} 76; IN 651; WIS 1758; NY 1119; [Cal.
    Report]{.underline} 70; [Garrett]{.underline}, 531 U.S. at 391-424
    (Breyer, J., dissenting).

[^20]: 0^20^ See also 2 [Leg. Hist.]{.underline} 1115 (Paul Zapun)
    (sheriff threatens persons with disabilities who stop in town due to
    car trouble); [id]{.underline}. at 1197 (police officer taunted
    witness by putting a gun to her head and pulling the trigger on an
    empty barrel, "because he thought it would be 'funny' since I have
    quadraparesis and couldn't flee or fight"); Task Force Report 21
    (six wheelchair users [arrested]{.underline} for failing to leave
    restaurant after manager complained that "they took up too much
    space"); TX 1541 (police refused to take an assault complaint from a
    person with a disability); LA 748 (police called to Burger King
    because staff believed disabled customer was acting strangely, and
    made the customer leave town); AL 6, DE 345, KS 673, WV 1746, IL 572
    (all: lack of interpreter for deaf arrestee). For additional
    examples of harassment and inappropriate treatment, see 2 [Leg.
    Hist.]{.underline} 1196 (Cindy Miller); IL 569-570, 583; [Cal.
    Report]{.underline} 101-104; [Garrett]{.underline}, 531 U.S. at
    391-424 (Breyer, J., dissenting). In addition, persons with
    disabilities, like epilepsy, are "frequently inappropriately
    arrested and jailed" and "deprived of medications while in jail."
    H.R. Rep. No. 485, [supra]{.underline}, Pt. 3, at 50.

[^21]: 1^21^ See also H.R. Rep. No. 485, [supra]{.underline}, Pt. 3, at
    25 ("These discriminatory polices and practices affect people with
    disabilities in every aspect of their lives \* \* \* \[including\]
    securing custody of their children."); [id]{.underline}., Pt. 2, at
    41 ("\[B\]eing paralyzed has meant far more than being unable to
    walk \-- it has meant being \* \* \* deemed an 'unfit parent'" in
    custody proceedings.); 2 [Leg. Hist.]{.underline} 1611 n.10 (Arlene
    Mayerson) ("Historically, child-custody suits almost always have
    ended with custody being awarded to the non-disabled parent.");
    [Spectrum]{.underline} 40; [Garrett]{.underline}, 531 U.S. at
    391-424 (Breyer, J., dissenting) (citing additional examples); [No
    Pity]{.underline}, [supra]{.underline}, at 26 (woman with cerebral
    palsy denied custody of her two sons; children placed in foster care
    instead); [In re Marriage of Carney]{.underline}, 598 P.2d 36, 42
    (Cal. 1979) (lower court "stereotype\[d\] William as a person deemed
    forever unable to be a good parent simply because he is physically
    handicapped"); Appendix A, [infra]{.underline}.

[^22]: 2^2^ See also Gov. Kitzhaber, [supra]{.underline} (admitting the
    use of "inhumane devices to restrain and control patients" until
    "the mid 1980's"); [Cal. Report]{.underline} 114; 132 Cong. Rec.
    S5914-01 (daily ed. 1986) (Sen. Kerry) (findings of investigation of
    State-run mental health facilities "were appalling. The extent of
    neglect and abuse uncovered in their facilities was beyond
    belief."); [Civil Rights of Instit. Persons: Hearings on S. 1393
    Before the Subcomm. on the Const. of the Sen. Comm. on the
    Judiciary]{.underline}, 95th Cong., 1st Sess. 127 (1977) (Michael D.
    McGuire, M.D.) (\"it became quite clear \* \* \* that the personnel
    regarded patients as animals, \* \* \* and that group kicking and
    beatings were part of the program\"); [id.]{.underline} at 191-192
    (Dr. Philip Roos); [Civil Rights for Instit. Persons: Hearings on
    H.R. 2439 and H.R. 5791 Before the Subcomm. on Courts, Civil
    Liberties, and the Admin. of Justice, of the House Comm. on the
    Judiciary]{.underline}, 95th Cong., 1st Sess. 239 (1977) (Stanley C.
    Van Ness) (describing \"pattern and practice of physical assaults
    and mental abuse of patients, and of unhealthy, unsanitary, and
    anti-therapeutic living conditions\" in New Jersey state
    institutions); [Civil Rights of Instit. Persons: Hearings on H.R. 10
    Before the Subcomm. on Courts, Civil Liberties, and the Admin. of
    Justice of the House Comm. on the Judiciary]{.underline}, 96th
    Cong., 1st Sess. 34 (1979) (Paul Friedman) ("\[A\] number of the
    residents were literally kept in cages. A number of those residents
    \* \* \* had lost the ability to walk, had become incontinent, and
    had regressed because of these shockingly inhumane conditions of
    confinement.\"); [Garrett]{.underline}, 531 U.S. at 391-424 (Breyer,
    J., dissenting) (citing additional examples).

[^23]: 3^23^ For additional examples, see 2 [Leg. Hist.]{.underline}
    1230 (Larry Urban); AL 2,31; CO 283; [Garrett]{.underline}, 531 U.S.
    at 391-424 (Breyer, J., dissenting); Appendix A.

[^24]: 4^24^ See also CA 261 (discrimination in licensing teachers); HI
    479 (discrimination in licensing); TX 1549 (state licensing
    requirements for teaching deaf students require the ability to
    hear); TX 1528 & 1542 (interpreters and readers not allowed for
    licensing exams); TX 1543 (blind applicant not allowed to take state
    chiropractor's exam because she could not read x-ray without
    assistance); [Garrett]{.underline}, 531 U.S. at 391-424 (Breyer, J.,
    dissenting) (citing additional examples).

[^25]: 5^25^ For additional examples, see 2 [Leg. Hist.]{.underline}
    1097 (Bill Dorfer); [id]{.underline}. at 1190 (Cindy Miller); WA
    1716; [Garrett]{.underline}, 531 U.S. at 391-424 (Breyer, J.,
    dissenting).

[^26]: 6^26^ See also [Spectrum]{.underline} 168 (discrimination in
    treatment and rehabilitation programs available to inmates with
    disabilities; inaccessible jail cells and toilet facilities); NM
    1091 (prisoners with developmental disabilities subjected to longer
    terms of imprisonment); Appendices A & B, [infra]{.underline}. The
    Attorney General's enforcement activities revealed that individuals
    awaiting placement in State mental institutions in Mississippi were
    held in a county jail and routinely left for days shackled in a
    "drunk tank" without any mental health treatment or supervision.
    Notice of Findings Regarding Hinds County Detention Ctr. 3 (1986).

[^27]: 7^27^ See 2 [Leg. Hist.]{.underline} 1100 (Shelley Teed-Wargo)
    (town library refused to let person with mental retardation check
    out a video "because he lives in a group home," unless he was
    accompanied by a staff person or had a written permission slip); PA
    1391 (same rule for library cards for "those having physical as well
    as mental disabilities").

[^28]: 8^28^ A paraplegic Vietnam veteran was forbidden to use a public
    pool; the park commissioner explained that "\[i\]t's not my fault
    you went to Vietnam and got crippled." 3 [Leg. Hist.]{.underline}
    1872 (Peter Addesso); see also [id]{.underline}. at 1995 (Rev. Scott
    Allen) (woman with AIDS and her children denied entry to a public
    swimming pool); WIS 1752 (deaf child denied swimming lessons); NC
    1156 (mentally retarded child not allowed in pool because of
    "liability risk"); CA 166 (inaccessible public recreation site);
    MISS 855 (same); [May 1989 Hearings]{.underline} 76 (Ill. Att'y Gen.
    Hartigan) (visually impaired children with guide dogs "cannot
    participate in park district programs when the park has a 'no dogs'
    rule"); NC 1155 (blind people told not to participate in regular
    parks and recreation programs).

[^29]: 9^29^ CA 216 (wheelchair users not allowed in homeless shelter);
    CA 223 (same); DE 322 (same for mentally ill).

[^30]: 0^30^ See 2 [Leg. Hist.]{.underline} 1078 (Ellen Telker) ("State
    and local municipalities do not make many materials available to a
    person who is unable to read print."); [id]{.underline}. at 1116
    (Virginia Domini) (persons with disabilities "must fight to function
    in a society where \* \* \* State human resources \[sic\] yell 'I
    can't understand you,' to justify leaving a man without food or
    access to food over the weekend."); IA 664 (person with mild mental
    retardation denied access to literacy program); KS 713
    (discrimination in state job training program); IL 533 (female
    disability workshop participants advised to get sterilized); AK 72
    (no interpreter for deaf at state motor vehicles department). For
    examples of inaccessible social service agencies, see AK 145; OH
    1218; AZ 116; AZ 127; HI 456; ID 541; see generally
    [Spectrum]{.underline} App. A (identifying 20 broad categories of
    state-provided or supported services and programs in which
    discrimination against persons with disabilities arises).

[^31]: 1^31^ Many of these reports, "Enforcing the ADA: A Status Report
    from the Department of Justice," are available at
    [www.usdoj.gov/crt/ada]{.underline}. See, [e.g.]{.underline},
    Oct.-Dec. 2001 Report 9 (candidate for city council who uses a
    wheelchair unable to access a city council platform to address
    constituents); Apr.-June 1998 Report 8-10 (absence of communication
    assistance results in longer pre-trial detention for detainees with
    disabilities and denial of medical treatment and communication with
    family members); July-Sept. 1997 Report 7-9 (State general assembly
    inaccessible for lobbyists with mobility impairments; lack of
    effective participation in court proceedings); Apr.-June 1997 Report
    5-7 (blind voters; inaccessible courts; unreasonable treatment
    during traffic stop of deaf motorist); Oct.-Dec. 1994 Report 4-6
    (access to town hall; effective participation in court proceedings;
    inaccessible polling places); "Enforcing the ADA: Looking Back on a
    Decade of Progress" 4-8 (July 2000) (access to public meetings and
    public offices, to courts and court proceedings; fair treatment by
    law enforcement).

[^32]: 2^32^ See also 136 Cong. Rec. H2627 (May 22, 1990) (Rep. Wolpe),
    [id]{.underline}. at H2633 (Rep. Levine); 134 Cong. Rec. S5116 (Apr.
    28, 1988) (Sen. Simon); 2 [Leg. Hist.]{.underline} 963 (Sandra
    Parrino); [id]{.underline}. at 967 (Adm. James Watkins) ("Too many
    States, for whatever reason, still perpetuate confusion. It is time
    for Federal action."); [id]{.underline}. at 1642-1643 (Arlene
    Mayerson) (noting variations and gaps in coverage of state
    statutes); 3 [Leg. Hist.]{.underline} 2245 (Robert Burgdorf); AL 24
    (failure to enforce laws protecting persons with disabilities) AK 52
    (same).

[^33]: 3^3^ Other state and local officials echoed those sentiments. See
    Dep't of Health & Human Servs., [Visions of: Independence,
    Productivity, Integration for People with Developmental
    Disabilities]{.underline} 29 (1990) (19 States strongly recommended
    passage of the Disabilities Act); 2 [Leg. Hist.]{.underline} 1050
    (Elmer Bartels, Mass. Rehab. Comm'n); [id]{.underline}. at 1455-1456
    (Nikki Van Hightower, Treas., Harris Co., Tex.); [id]{.underline}.
    at 1473-1474 (Robert Lanier, Chair, Metro. Transit Auth. of Harris
    Co., Tex.); [id]{.underline}. at 1506 (Texas State Sen. Chet Brooks)
    ("We cannot effectively piece these protections together state by
    state."); [id]{.underline}. at 1508; [May 1989 Hearings]{.underline}
    778 (Ohio Governor). Indeed, state officials themselves had "pointed
    to negative attitudes and misconceptions as potent impediments to
    \[their own\] barrier removal policies." Advisory Comm'n on
    Intergovernmental Relations, [Disability Rights Mandates: Federal
    and State Compliance with Employment Protections and Architectural
    Barrier Removal]{.underline} 87 (Apr. 1989).

[^34]: 4^34^ See also [May 1989 Hearings]{.underline} 386-394 (lengthy
    analysis of state laws); 3 [Leg. Hist.]{.underline} 2245 (James
    Ellis) ("state laws have not provided substantial protection to
    people with disabilities\"); [Employment Discrim. Against Cancer
    Victims and the Handicapped: Hearing Before the Subcomm. on
    Employment Opp. of the House Comm. on Educ. & Labor]{.underline},
    99th Cong., 1st Sess. 62 (1985) (Rep. Moakley) ("\[O\]ne-fourth of
    the states have no protection for the handicapped. Additionally,
    even those states with laws differ greatly in their regulations.")
    (attaching ten-state survey showing gaps in coverage of laws).

[^35]: 5^35^ See, [e.g.]{.underline}, S. Rep. No. 415, 92d Cong., 1st
    Sess. 19 (1971) (37 States had equal employment laws at the time
    Title VII was extended to the States).

[^36]: 6^36^ See, [e.g.]{.underline}, [M.L.B.]{.underline} v.
    [S.L.J.]{.underline}, 519 U.S. 102, 121-122 (1996) (transcript fee
    modified in appeal of parental termination, where it was "not likely
    to impose an undue burden on the State"); [Stanley]{.underline}, 405
    U.S. at 651-658 (State must provide individualized determination of
    father's fitness to raise his children).

[^37]: 7^37^ See, [e.g.]{.underline}, [Little]{.underline} v.
    [Streater]{.underline}, 452 U.S. 1, 13-17 (1981) (State must pay for
    blood test for indigent defendant in paternity suit); [Memorial
    Hosp]{.underline}. v. [Maricopa County]{.underline}, 415 U.S. 250,
    263 (1974); [Carrington]{.underline} v. [Rash]{.underline}, 380 U.S.
    89, 95 (1965) ("States may not casually deprive a class of
    individuals of the vote because of some remote administrative
    benefit to the State.").

[^38]: 8^38^ See also S. Rep. No. 116, [supra]{.underline}, at 10-12,
    89, 92; H.R. Rep. No. 485, [supra]{.underline}, Pt. 2, at 34; 2
    [Leg. Hist.]{.underline} 1552 (EEOC Comm'r Evan Kemp);
    [id]{.underline}. at 1077 (John Nelson); [id]{.underline}. at
    1388-1389 (Justin Dart); [id]{.underline}. at 1456-1457;
    [id]{.underline}. at 1560 (Jay Rochlin); 3 [Leg. Hist.]{.underline}
    2190-2191 (Robert Burgdorf); Task Force Report 27;
    [Spectrum]{.underline} 2, 30, 70; GAO, Briefing Report on Costs of
    Accommodations, [Americans with Disabilities Act: Hearing Before the
    House Comm. on Small Business]{.underline}, 101st Cong., 2d Sess.
    190 (1990).

[^39]: 9^39^ Likewise, child-size and adult-size water fountains
    routinely appear in buildings; requiring accessible fountains just
    expands that routine design process. 2 [Leg. Hist.]{.underline}
    993-994 (Jade Calegory) ("Black people had to use separate drinking
    fountains and those of us using wheelchairs cannot even reach some
    drinking fountains. We get thirsty, too.").