ED 450 528

AUTHOR

TITLE

INSTITUTION

PUB DATE

NOTE

AVAILABLE FROM

PUB TYPE

EDRS PRICE

DESCRIPTORS

IDENTIFIERS

ABSTRACT

DOCUMENT RESUME

EC 308 285

Isler, Frederick D.; Zalokar, Nadja; Chambers, David; Kraus,

Rebecca; Johnson, Wanda; Butler, Margaret; Avery, Michelle

Leigh; Tyler, Marcia; Baird, Andrea; Foshee, Latrice;

Turner, Ilona

Helping State and Local Governments Comply with the ADA: An

Assessment of How the United States Department of Justice Is

Enforcing Title II, Subpart A, of the Americans with

Disabilities Act.

Commission on Civil Rights, Washington, DC.

1998-09-00

176p.

U.S. Commission on Civil Rights, 624 Ninth Street, N.W.,

Washington, DC 20425. Tel: 202-376-8128.

Reports Descriptive (141) Reports Evaluative (142)

MF01/PC08 Plus Postage.

Adults; *Agency Role; Arbitration; Children; *Civil Rights

Legislation; *Compliance (Legal); Court Litigation;

*Disabilities; *Disability Discrimination; Federal

Regulation; *Law Enforcement; Program Effectiveness

Americans with Disabilities Act 1990; Commission on Civil

Rights; Department of Justice

This report from the United States Commission on Civil

Rights focuses specifically on the efforts of the U.S. Department of Justice

(DOJ) to enforce Title II, Subtitle A of the Americans with Disabilities Act,

which prohibits discrimination based on disability by public entities such as

state and local governments. The report evaluates DOJ's regulations and

policies clarifying the language of the statute; processing of complaints of

discrimination based on disability; litigation; and outreach, education, and

technical assistance efforts related to the Act. The Commission finds that

DOJ's implementation and enforcement program for the Americans with

Disabilities Act is generally adequate, given its limited resources and

extensive responsibilities. It finds that DOJ's greatest strength is its

technical assistance and outreach and education program, which is extremely

effective and praised widely by agency stakeholders. Another strength is

DOJ's innovative use of alternative dispute resolution or mediation

techniques to resolve complaints of discrimination. A general weakness of

DOJ, however, is that it appears unresponsive to the concerns and priories of

its stakeholders. To ensure that all stakeholders have a voice in DOJ's

decision making, the Commission recommends that a formal mechanism be

instituted to obtain input from interested parties. (Contains over 700

references.) (CR)

Reproductions supplied by EDRS are the best that can be made

from the original document.
00

Helping State and

Local Governments

Comply with the ADA

An Assessment of How the

United States Department of Justice

Is Enforcing Title II, Subpart A, of the

Americans with Disabilities Act

U.S. DEPARTMENT OF EDUCATION

Office of Educational Research and Improvement

EDUCATIONAL RESOURCES INFORMATION

CENTER (ERIC)

O This document has been reproduced as

received from the person or organization

originating it.

O Minor changes have been made to

improve reproduction quality.

Points of view or opinions stated in this

document do not necessarily represent

official OERI position or policy.

A Report of the United States

Commission on Civil Rights

September 1998

BEST COPY AVAILABLE

2
U.S. Commission on Civil Rights

The U.S. Commission on Civil Rights is an independent, bipartisan

agency first established by Congress in 1957 and reestablished in

1983. It is directed to:

Investigate complaints alleging that citizens are being deprived

of their right to vote by reason of their race, color, religion, sex,

age, disability, or national origin, or by reason of fraudulent

practices;

Study and collect information relating to discrimination or a

denial of equal protection of the laws under the Constitution

because of race, color, religion, sex, age, disability, or national

origin, or in the administration of justice;

Appraise Federal laws and policies with respect to

discrimination or denial of equal protection of the laws because

of race, color, religion, sex, age, disability, or national origin, or

in the administration of justice;

Serve as a national clearinghouse for information in respect to

discrimination or denial of equal protection of the laws because

of race, color, religion, sex, age, disability, or national origin;

Submit reports, findings, and recommendations to the President

and Congress;

Issue public service announcements to discourage discrimination or denial of equal protection of the laws.

Members of the Commission

Mary Frances Berry, Chairperson

Cruz Reynoso, Vice Chairperson

Carl A. Anderson

Robert P. George

A. Leon Higginbotham, Jr.

Constance Horner

Yvonne Y. Lee

Russell D. Redenbaugh

Ruby G. Moy, Staff Director

s
Helping State and

Local Governments

Comply with the ADA

An Assessment of How the

United States Department of Justice

Is Enforcing Title II, Subpart A, of the

Americans with Disabilities Act

A Report of the United States

Commission on Civil Rights

September 1998
Letter of Transmittal

The President

The President of the Senate

The Speaker of the House of Representatives

Sirs:

The United States Commission on Civil Rights transmits this report, Helping State and Local Governments Comply with the ADA, pursuant to Public Law 103-419. The report, along

with a companion report, Helping Employers Comply with the ADA (dealing with enforcement of title I of the ADA by the Equal Employment Opportunity Commission) reflects the

Commission's commitment to ensuring that Americans with disabilities are afforded equal

opportunity and that the Nation's civil rights laws prohibiting discrimination on the basis of

disability are vigorously enforced. In accordance with this commitment, the Commission releases its first evaluation of the enforcement of the Americans with Disabilities Act, 8 years

after enactment of the statute.

This report focuses specifically on the efforts of the U.S. Department of Justice (DOJ) to enforce title II, subtitle A, of the Americans with Disabilities Act, which prohibits discrimination based on disability by public entities such as State and local governments. The report

evaluates DOJ's regulations and policies clarifying the language of the statute; processing of

complaints of discrimination based on disability; litigation; and outreach, education, and

technical assistance efforts relating to the act. The report also assesses DOJ's effectiveness in

its role as coordinator of the Americans with Disabilities Act enforcement efforts of seven

other designated Federal agencies.

The Commission finds that DOJ's implementation and enforcement program for the Americans with Disabilities Act is generally adequate, given its limited resources and extensive

responsibilities. DOJ deserves positive recognition for several aspects of its Americans with

Disabilities Act enforcement to date. Perhaps the greatest strength of DOJ's Americans with

Disabilities Act implementation and enforcement efforts is its technical assistance and outreach and education program, which is extremely effective and praised widely by agency

stakeholders. Another strength is DOJ's innovative use of alternative dispute resolution or

mediation techniques to resolve complaints of discrimination. For many cases, mediation results in an expedited resolution of the case to the satisfaction of both parties, without the unnecessary use of resources for investigation or litigation. However, the Commission has identified several ways in which DOJ could improve its enforcement of title II, subtitle A, of the

Americans with Disabilities Act and offers specific findings and recommendations to increase

DOJ's effectiveness in carrying out its mission to enforce title II.

A general weakness of DOJ's Americans with Disabilities Act implementation and enforcement program is that it appears unresponsive to the concerns and priorities of its stakeholders, including individuals with disabilities, State and local government agencies, disability

professionals, and disability experts. To ensure that all stakeholders have a voice in DOJ's

decisionmaking related to the Americans with Disabilities Act, the Commission recommends

that the Disability Rights Section, the office responsible for the Americans with Disabilities

Act, institute formal mechanisms to obtain input from interested parties, such as an Americans with Disabilities Act Advisory Board comprised of persons representative of the broad

range of DOJ stakeholders.

iii

5
Among important specific failings the Commission identified in DOJ's title II, subtitle A, implementation and enforcement program is that DOJ does not develop and publish indepth

policy guidance documents to clarify the meaning of the law and explain the reasoning behind the positions it takes in controversial areas. Instead, DOJ's Americans with Disabilities

Act policy development is limited to its enforcement and technical assistance activities, such

as investigation of complaints and negotiation of settlement agreements, filing of arnicus curiae briefs, and development and dissemination of technical assistance materials. The divergent rulings among Federal courts on title II issues reinforces the need for DOJ to develop

and publish formal title II policy guidance.

The Department of Justice is required by its regulations to investigate all charges of discrimination it receives under title II. The Commission found that DOJ does not have enough

investigators to investigate all charges of discrimination received. Without additional investigators, the length of time it takes for a complaint to be resolved and the possibility that the

complaint may never be investigated are increased.

The Commission also found that DOJ has not directed sufficient resources toward establishing

legal precedent that is binding on parties in subsequent cases. One significant obstacle has been

that title II regulations require DOJ to attempt to negotiate a resolution to every complaint before considering litigation. However, the past has shown a positive result from more litigation

efforts by DOJ in many areas affecting larger numbers of people, such as clarifying curb cuts

and eliminating improper mental health inquiries in professional licensing procedures.

Finally, the Commission found that DOJ has not fulfilled its responsibility to monitor and

coordinate the ADA enforcement activities of the Federal agencies designated to enforce the

statute. DOJ has not assigned staff to that function. Interactions between DRS and the designated Federal ADA agencies generally are informal and usually are initiated by the agencies when they believe they need assistance. Given that the designated agencies have not

referred cases to DOJ in title II areas where it would be important for the Federal Government to engage in litigation to develop the law, it is evident that stronger leadership and coordination by DOJ is necessary.

The report contains numerous other findings and recommendations to assist DOJ in enhancing its enforcement of title II, subtitle A, of the Americans with Disabilities Act. Although DOJ can implement many of these recommendations within its existing budget, the

major failings in the title II, subtitle A, enforcement effort, particularly the lack of investigators to investigate complaints of discrimination, cannot be rectified until DOJ receives additional resources for enforcing the Americans with Disabilities Act. The Commission calls

upon Congress to provide the resources needed for DOJ to carry out the full range of its responsibilities under the Americans with Disabilities Act.

The goals of the Americans with Disabilities Actequality of opportunity, full participation,

independent living, and economic self-sufficiencyare truly important. If achieved, they will

enable all Americans with disabilities to realize the full measure of their potential and human dignity. A renewed national commitment to vigorous enforcement of the Americans with

Disabilities Act is crucial to the achievement of these goals.

Respectfully,

For the Commissioners,

/3-(1_<,)

MARY FRAN S BERRY

Chairperson

iv
Acknowledgments

The administrative work, policy research, data analysis, onsite factfinding, and writing for

this report were performed by the following Office of Civil Rights Evaluation staff: Frederick

D. Is ler, Assistant Staff Director; Nadja Zalokar, Supervisory Civil Rights Analyst; David

Chambers, Senior Civil Rights Analyst; Rebecca Kraus, Senior Social Scientist; Wanda Johnson, Civil Rights Analyst; Margaret Butler, Civil Rights Analyst; Michelle Leigh Avery,* Civil

Rights Analyst; Marcia Tyler, Community Relations Manager; Andrea Baird, Social Scientist;

Latrice Foshee, Civil Rights Assistant; and Ilona Turner, Equal Opportunity Assistant. The

following unpaid student interns made substantial contributions to the research and writing

of this report: Stephanie Celandine, George Mason University; Kristy Mc Morris, Howard

University; Jade Brown, Howard University; Alex Merati, The Catholic University; Dion Symonette, Prince George's County Community College; Raphael Prober, Georgetown University; and Bonnie Schreiber, Georgetown University. The legal review was performed by Erik

S. Brown, Attorney-Advisor. Editorial review was provided by James S. Cunningham, Assistant Staff Director for Congressional Affairs; Barbara J. Fontana, Librarian; Marc D. Pentino, Civil Rights Analyst; and Stella G. Youngblood, Civil Rights Analyst. The following unpaid student interns assisted in editing and conducting legal research for the report: Dorian

Hamilton, Howard University School of Law; Nicholas Rathod, The American University

Washington College of Law; Richard Bernstein, The Catholic University of America Columbus School of Law; and Ethan Susskind, The American University Washington College of

Law. This report was developed under the direct supervision of Frederick D. Is ler, Assistant

Staff Director for Civil Rights Evaluation.

The Commission especially wishes to thank the following agencies for the background information they provided the Office of Civil Rights Evaluation to assist in the Americans with

Disabilities Act Project Design: the National Council on Disability, the President's Committee on Employment of People with Disabilities, the National Institute of Disability Research

and Rehabilitation, and the National Association of Protection and Advocacy Systems.

* No longer with the Commission.

7
Contents

1. Introduction 1

2. Overview of Enforcement of Title II 5

Civil Rights Division 6

Mission and Responsibilities 6

Organization, Budget, and Staff 7

Disability Rights Section 9

Creation 9

Mission and Responsibilities 10

Organization, Budget, and Staff 11

Use of Computer Technology 13

Staff Training 13

Past Performance 14

Strategic Planning 16

U.S. Department of Justice 16

Civil Rights Division 17

Disability Rights Section 17

Title II Implementation, Enforcement, and Compliance Activities 17

Regulatory and Policymaking Functions 17

Regulations 17

Policy 19

Coordinating and Monitoring Federal Agencies' Enforcement Efforts 19

Certifying State and Local Building Codes 22

Complaints Processing Procedures 23

Mail Process 24

Intake Process 25

Alternate Dispute Resolution/Mediation Process 26

Investigation Process 28

Litigation Process 29

Analysis of Complaint Processing Data 31

3. An Assessment of Title II Policy Development and Enforcement by the

Department of Justice 37

Policy Development 37

Through Technical Assistance 37

Through Enforcement 38

Public Participation 39

Title II Compliance Requirements 40

Administrative Requirements 40

Notice 40

Self-Evaluation 40

Transition Plans 40

ADA Contact Persons and Grievance Procedures 41

General Nondiscrimination 42

Program Accessibility 43

General Requirements 44

Architectural Considerations 45

Existing Facilities 45

Leased Facilities 46

Historic Facilities 47

vi
Educational Facilities 47

Courts 48

Sidewalks, Curbs, and Ramps 49

Public Parking 50

Voting 51

New Construction and Alterations 52

Certification 53

Equally Effective Communication 53

General Requirements 54

Forms of Communication 55

Interpreters 55

TDD Services 55

Signage and Auxiliary Aids 56

911 Emergency Telephone Services 56

Public Employment 59

Relationship Between Titles I and II in Public Employment 59

Title II as a Basis for Public Employment Discrimination Cases 61

4. Title II Policy and Enforcement in Specific Contexts 65

Law Enforcement and Emergency Services 65

Law Enforcement 66

Discrimination by Law Enforcement Personnel 66

Title II Litigation 67

Settlement Agreements 69

Technical Assistance Materials 69

Discrimination Against Law Enforcement Personnel in Employment 70

Title II Litigation 71

Technical Assistance Materials 71

Investigations and Policy Letters 72

Emergency Services 73

Discrimination by Emergency Services Personnel 73

Title II Litigation 73

Technical Assistance Materials 74

Settlement Agreements 74

Policy Letters 74

Discrimination Against Emergency Services Personnel in Employment 75

Title II Litigation 75

Settlement Agreements 77

Summary 77

Prisons 78

Applicability of Title II 79

Provisions Facilitating Access of Prisoners with Disabilities to Programs 81

Architectural Barriers in Prisons 82

Professional Licensing 83

Statutory and Regulatory Framework 83

Professional Licensing Issues 85

Application Requirements 85

Testing Procedures 89

Other Licenses 91

Public Health Care 92

Integrated Setting 93

Policies on Title II and Health Care 94

Policy Letters on Health Care Issues 94

A,nicus Curiae Briefs in Health Care Related Cases 96

vii
Recent Legal Challenges and Research Studies 98

Technology and State and Local Government Web Sites 103

TechnologyEmerging Issues 103

General Advantages of Technological Devices and Services 105

Technology-related Assistance 106

Americans with Disabilities Act 107

Financial Barriers Associated with Assistive Technology 108

Examples of Federal Initiatives 109

U.S. Department of Education 109

U.S. Department of Defense 109

State and Local Government Web Sites 109

Barriers Associated With Web Sites on the Internet 110

Lack of DOJ Guidance to State and Local Governments on

Web Site Accessibility 111

Other Activities Relating to Web Site Accessibility 113

5. Title II Outreach, Education, and Technical Assistance 116

Technical Assistance Plan 116

Interagency Coordination 117

Reporting 117

DOJ Technical Assistance Program 118

Early Implementation Efforts 118

Pre-1993 Implementation Efforts 119

Technical Assistance Manual 120

Training and Education Programs 121

Technical Assistance Grants and Contracts 122

More Recent ADA Implementation Efforts 123

Use of Varied Communications Methods 123

Extensive Efforts to Reach a Broad Audience 124

Specific Title II Technical Assistance and Outreach Efforts 126

Technical Assistance and Outreach to Minority and Rural Communities 127

Future ADA Technical Assistance Efforts 131

6. Findings and Recommendations 132

Tables

2.1 Top States from Which Complaints Are Filed 31

2.2 Disability of Complainant 33

Figures

2.1 Complaints by State 32

2.2 Issues Addressed in Complaints 34

2.3 Agency to Which Complaints Were Referred 34

2.4 Length of Time Complaint Has Remained Open 35

2.5 Length of Time to Close Complaints 36

Bibliography 145

viii

10
Introduction

On July 26, 1990, 26 years after the passage

of the Civil Rights Act of 1964,1 President Bush

signed the Americans with Disabilities Act

(ADA) into law.2 With the enactment of this law,

Congress provided a panoply of Federal civil

rights protections for persons with disabilities.

The law seeks to ensure for people with disabilities such rights as equal opportunity in education

and employment; full accessibility to public accommodations, telecommunications, and health

insurance; and a total commitment by Federal,

State, and local governments to supporting the

rights of individuals with disabilities.

The statement of findings for the ADA is

compelling. Congress found that 43 million

Americans had physical or mental disabilities

and described in direct, powerful language the

widespread discrimination faced by people with

disabilities throughout our history.3 Congress

found that individuals with disabilities faced

discrimination "in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting,

and access to public services"4 and that the discrimination took various forms, including

"outright intentional exclusion, the discriminatory effects of architectural, transportation, and

communication barriers, overprotective rules

Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 28

U.S.C. § 1447, 42 U.S.C. §§ 1971, 1975a-1975d, 2000a to

2000h-6 (1994)).

2 Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at

42 U.S.C. §§ 12101-12213 (1994).

3 42 U.S.C. § 12101(a) (1994).

4 Id. § 12101(a)(3).

1

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."5

Congress noted that "historically, society has

tended to isolate and segregate individuals with

disabilities,"6 that individuals with disabilities

"occupy an inferior status in our society and are

severely disadvantaged socially, vocationally, economically, and educationally"7 and finally that:

individuals with disabilities are a discrete and insular

minority who 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.8

Furthermore, individuals with disabilities, unlike

others experiencing discrimination, often had "no

legal recourse to redress such discrimination."3

Congress stated that "the Nation's proper

goals regarding individuals with disabilities are

to assure equality of opportunity, full participation, independent living, and economic selfsufficiency"10 and that ongoing discrimination

5 Id. § 12101(a)(5).

6 Id. § 12101(a)(2).

7 Id. § 12101(a)(6).

8 Id. § 12101(a)(7).

9 Id. § 12101(a)(4).

lo § 12101(a)(8).
against individuals with disabilities prevented

the accomplishment of these goals:

[T]he continuing existence of unfair and unnecessary

discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis

and to pursue those opportunities for which our free

society is justifiably famous, and costs the United

States billions of dollars in unnecessary expenses

resulting from dependency and nonproductivity."

To eliminate this invidious discrimination,

Congress stated that it is the purpose of the ADA:

(1) to provide a clear and comprehensive national

mandate for the elimination of discrimination against

individuals with disabilities;

(2) to provide clear, strong, consistent, enforceable

standards addressing discrimination against individuals with disabilities;

(3) to ensure that the Federal Government plays a

central role in enforcing the standards established in

this chapter on behalf of individuals with disabilities;

and

(4) to invoke the sweep of congressional authority,

including the power to enforce the fourteenth

amendment and to regulate commerce, in order to

address the major areas of discrimination faced

day-to-day by people with disabilities.12

To meet the goal of a universal ban on discrimination against persons with disabilities,

Congress created four separate titles in the act

to prohibit the discrimination enumerated in the

act's findings. Title I of the act bans discrimination against persons with disabilities in employment.13 Title II prohibits discrimination by

State and local governments and requires that

they ensure all activities, programs, and public

transportation services they provide are accessible to persons with disabilities.14 Title III provides for nondiscrimination against persons with

disabilities in public accommodations and certain public transportation services provided by

private entities.15 Title IV of the act bans disII Id. § 12101(a)(9).

12 Id. § 1210100(1)-(4).

13 Pub. L. No. 101-336, title I, §§ 101-108, 104 Stat. 330, 330-

37 (codified at 42 U.S.C. §§ 12111-12117 (1994)).

14 Id., title II, §§ 201-246, 104 Stat. 337, 337-53 (42 U.S.C. §§

12131-12165 (1994)).

18 Id., title III, §§ 301-310, 104 Stat. 353, 353-65 (42 U.S.C.

§§ 12181-12189 (1994)).

2

12

crimination in telecommunications.16 A fifth title

contains miscellaneous provisions clarifying

ADA's relationship to other laws and addressing

such issues as health insurance.17

The Americans with Disabilities Act defines an

individual with a disability as a person who has:

(A) a physical or mental impairment that substantially limits one or more of the major life activities of

such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.18

The basic nondiscrimination provision of title

II, subtitle A, states:

Subject to the provisions of this subchapter, 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.i°

Thus, title II, subtitle A, limits its coverage to

"qualified" individuals with disabilities. Subtitle A

defines "qualified individual with a disability" as:

an individual with a disability who, with or without

reasonable modifications to rules, policies, or practices,

the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids

and services, meets the essential eligibility requirements for the receipt of services or the participation in

programs or activities provided by a public entity.2°

Subtitle A defines "public entity" as:

(A) any State or local government; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (C) the National Railroad Passenger Corporation, and any commuter authority (as defined in

section 502(8) of title 45).21

18 Id., title IV, §§ 401-402, 104 Stat. 366, 366-69 (47 U.S.C.

§§ 225, 611 (1994)).

17 Id., title V, §§ 501-514, 104 Stat. 369, 369-78 (42 U.S.C. §§

12201-12213 (1994)).

18 42 U.S.C. § 12102(2)(a)-(c) (1994).

19 Id. § 12132.

20 id. § 12131(2).

21 Id. § 12131(1)(a)-(c).
Title II of the statute seeks to ensure that

State and local governments provide equal access

to their services to people with disabilities.22 In

May 1990, Rep. Don Edwards explained the purpose behind title II in this way:

The ADA extends the protections of section 504 of the

Rehabilitation Act, prohibiting discrimination in federally funded programs, to all programs, activities

and services of State or local governments, regardless

of the receipt of Federal financial assistance. Section

504 served as the first step toward breaking barriers

that, for too long, kept persons with disabilities out of

the American mainstream. . . . By enacting title II, we

cover those remaining government entities who were

not covered in the past.23

As the ADA was being debated in Congress, the

main issues on which Congress was divided with

respect to title II were the extent to which the

new law would encroach on traditionally held

State and local prerogatives generally and the requirements for public transportation systems. For

example, Senator Pryor of Utah expressed concern with respect to title II that "[t]his legislation

basically preempts all State and local laws and

regulations regarding access for the disabled."24

Congress has charged various Federal agencies with implementing the ADA. The U.S. Department of Justice (DOJ) is the agency primarily responsible for subtitle A of title 11.25 Within

DOJ, responsibility for enforcing title II, subtitle

A, of the ADA largely falls to the Disability

Rights Section of the Civil Rights Division. To

obtain compliance with the ADA, DOJ uses implementing regulations, policy guidance, complaint investigations, mediation, settlement, and

in some cases, litigation. In compliance with the congressional requirement to promulgate regulations consistent

with the ADA and with the coordination regulations under 28 C.F.R. part 41, the U.S. Depart22 42 U.S.C. §§ 12131-12161 (1994).

23 135 CONG. REC. H2439 (daily ed. May 17, 1990) (statement of Rep. Edwards).

24 135 CONG. REC. 510741 (daily ed. Sept. 7, 1989) (statement of Sen. Pryor).

25 42 U.S.C. § 12134(a) (1994). subtitle B, entitled "Actions

Applicable To Public Transportation Provided By Public

Entities Considered Discriminatory," 42 U.S.C. §§ 12141-

12165 (1994), is under the regulatory authority of the U.S.

Department of Transportation.

3

ment of Justice issued its regulation implementing title II, subtitle A, on July 26, 1991.26

This regulation designates eight Federal agencies (including DOJ) to address complaints of

discrimination under title II, subchapter A, with

DOJ assuming an oversight and coordination

role. The regulations state:

The Assistant Attorney General shall coordinate the

compliance activities of Federal agencies with respect

to State and local government components, and shall

provide policy guidance and interpretations to designated agencies to ensure the consistent and effective

implementation of the requirements of this part.27

The designated agencies are: U.S. Department of

Agriculture, U.S. Department of Education, U.S.

Department of Health and Human Services, U.S.

Department of Housing and Urban Development,

U.S. Department of Interior, U.S. Department of

Justice, U.S. Department of Labor, and U.S. Department of Transportation.28 Under the regulation, each of these agencies is tasked with investigating and resolving complaints.29 In addition, the

regulation states that DOJ may assign responsibility for the implementation of compliance procedures not assigned to specific designated agencies

to other specific agencies.30 If informal resolution

efforts fail, a complaint may be referred to the

DOJ for possible litigation.31

In the 6 years since the ADA went into effect,

much has been said about overzealous enforcement of the ADA by the Equal Employment Opportunity Commission and the Department of

Justice. But other observers have told the Commission that they do not believe the two agencies

have been sufficiently aggressive in enforcing the

law, although they often give the agencies credit

for trying. For instance, one individual told Commission staff that the basic perception in the disability community is that there is no enforcement

26 Nondiscrimination on the Basis of Disability in State and

Local Government Services, 56 Fed. Reg. 35,694 (1991)

(codified at 35 C.F.R. pt. 35 (1997)).

27 28 C.F.R. § 35.190(a) (1997).

28 Id. § 35.190(b)(1)-(8) (1997).

29 Id. §§ 35.170-178 (1997).

3° Id. § 35.190(c) (1997).

31 Id. § 35.174 (1997).

13
of the ADA.32 A grantee of the National Institute

on Disability and Rehabilitation Research

(NIDRR) wrote, "The perception among people

with disabilities and others in our region is that

there is very little enforcement going on, yet we

know that with the staffing available, there is a

tremendous amount being accomplished. People

are not seeing implementation at the community

level."33 Another NIDRR grantee wrote,

"Basically, no federal agency with [ADA] enforcement responsibility is doing a great job."34

To date, the public debate over the impact and

enforcement of the ADA has largely been carried

out in the media. Sufficient time has elapsed,

however, since passage of the ADA for a more dispassionate and careful study of the ADA. Therefore, under its mandate to evaluate Federal civil

rights enforcement, the Commission turns its attention to the ADA implementation and enforcement activities of the U.S. Equal Employment

Opportunity Commission and the U.S. Department of Justice. In this report, the Commission

examines how well the U.S. Department of Justice is fulfilling its mandate to implement and enforce the ADA's nondiscrimination prohibitions in

accessibility to State and local government services under title II, subtitle A, of the act.35 A companion report evaluates the title I implementation

and enforcement activities of the U.S. Equal Employment Opportunity Commission. The reports

evaluate each agency's regulations and policy

guidance, participation in litigation, processing of

complaints, and provision of technical assistance.36

32 U.S. Commission on Civil Rights, Summary of National

Institute on Disability and Rehabilitation Research (NIDRR),

ADA Technical Assistance Program Project Directors' Meeting, Arlington, VA, Feb. 24-25, 1998, p. 6. This opinion was

expressed by an individual NIDRR grantee and does not reflect NIDRR's views on the effectiveness of ADA enforcement.

" NIDRR, ADA Project Directors' responses, p. 2.

34 Ibid., p. 5.

35 The report does not include an evaluation of subtitle B of

title II, which deals with discrimination in transportation,

and it also does not include any of the other ADA titles.

36 The report does not assess the role of State and local fair

employment practices agencies in the enforcement of title I.

The report also does not address the seven other designated

Federal agencies having title II responsibilities in areas

such as transportation, agriculture, and education, nor does

it evaluate the Department of Justice's oversight and coor- dination of the designated Federal agencies for title II.

4

Eight years after passage of the Americans

with Disabilities Act, many basic issues, such as

who the act protects and what employers or other

covered entities are required to do under the act,

remain unresolved. In large measure, these issues

arise out of inherent ambiguities in the language

of the law that have not been resolved through

the regulations or by the Federal courts. In addition to these policy issues, concerns have arisen as

to how effectively the agencies charged with enforcing the ADA have processed charges of discrimination, and whether their technical assistance, outreach, and education have been successful in informing covered entities, the disability

community, and the public at large as to rights

and responsibilitiesunder the act.

Some of the issues that have arisen specifically with respect to the Department of Justice's

title II enforcement are: whether DOJ has developed and published sufficient policy documents

on title II; whether DOJ has an adequate formal

or informal mechanism for disability advocacy

groups to comment on the cases and issues DOJ

addresses; whether DOJ has mediated complaints against State and local governments where a pattern or practice of discrimination

exists, with the result that the personal situation

of one individual with a disability is resolved but

the overall discriminatory practice continues;

whether DOJ has engaged sufficiently in litigation to develop caselaw and put State and local

government agencies on notice that they must

comply with title II; whether DOJ coordinates

adequately with State and local governments;

and whether DOJ reviews State and local government entities' section 504 transition plans in

relation to ADA compliance. Broader issues also

exist, including whether the act has been successful in opening up opportunities for persons

with disabilities and what has been the cost of

compliance.

In preparing this report, Commission staff

did a literature review and sought information

from the disability community, disability experts,

and representatives of employers and State and

local governments. Staff also analyzed and assessed numerous documents obtained from the

Department of Justice, interviewed Department

of Justice staff and officials, and analyzed complaint data from the agencies.

14
2 Overview of Enforcement of Title II

Since 1973, State and local government programs and activities that receive Federal financial

assistance have been prohibited from discriminating against individuals based on disability under section 504 of the Rehabilitation Act of 1973.1

Title II, subtitle A, of the Americans with Disabilities Act (ADA)2 and its implementing regulations3

extend section 504's nondiscrimination mandate

to all actions of State and local government entities, regardless of whether they receive Federal

funding.4 Thus, State and local government operations which do not receive Federal funds, such

as courts, legislative bodies, and licensing activiPub. L. No. 93-112 § 504, 87 Stat. 355, 394 (codified as

amended at 29 U.S.C. § 794 (1994)). Each Federal agency

has its own set of regulations that apply section 504 to its

programs. Typical 504 requirements include reasonable

accommodations for employees with disabilities, program

and building accessibility, and effective communication with

people who have sensory disabilities. U.S. Department of

Justice (DOJ), Civil Rights Division (CRD), A Guide to Disability Rights Laws (May 1997), p. 13 (hereafter cited as

DOJ/CRD, A Guide to Disability Rights Laws).

2 42 U.S.C. §§ 12131-12134 (1994). Throughout this chapter,

unless otherwise specified, the term "title II" is used as an

abbreviation to refer to title II, subtitle A, of the ADA. While

DOJ is responsible for title II, subtitle A, of the ADA, the

U.S. Department of Transportation (DOT) handles enforcement provisions of title II, subtitle B, which prohibits discrimination in public transportation. See 42 U.S.C. §§

12,141-12165 (1994). DOT is charged with developing ADA

regulations that specify requirements for transportation

vehicles and facilities. See 42 U.S.C. §§ 12164-12165 (1994);

DOJ, CRD, Title II Highlights, (undated), p. 1 (hereafter

cited as Title II Highlights).

3 28 C.F.R. §§ 35.101.190 (1997).

4 See 28 C.F.R. § 35.102 (1997); 28 C.F.R. pt. 35, app. A §

35.102.

5

ties, must meet the section 504 standards incorporated into title 11.5

The U.S. Department of Justice (DOJ) is the

main Federal agency responsible for investigating and enforcing ADA title II compliance by

State and local governments.6 Within DOJ,

authority for ADA enforcement and administration is delegated to the Civil Rights Division

(CRD). CRD is charged with monitoring and revising regulations, investigating and resolving

complaints of discrimination, enforcing compliance with the statute by State and local governments, and coordinating the title II enforcement

efforts of seven other Federal agencies.? Within

5 DOJ, CRD, Disability Rights Section (DRS), The Americans

with Disabilities Act: Title II Technical Assistance Manual

Covering State and Local Government Programs and Services(1993), p. 1 (hereafter cited as DOJ/CRD, Title II Technical Assistance Manual); Arlene B. Mayerson, Americans

with Disabilities Act Annotated: Legislative History, Regulations and Commentary, 2 vols. (Deerfield, IL: Clark Boardman Callaghan, 1997), vol. 2, § 202, at 20-21.

6 DOJ coordinates the compliance activities of Federal agencies with respect to State and local government components

and provides policy guidance and interpretations to these

agencies to ensure the consistent and effective implementation of title II. 28 C.F.R. § 35.190(a) (1997). DOJ also enforces title II in more functional areas than the other seven

federal agencies responsible for title II compliance by State

and local governments. See id. § 35.190(b)(1)(8).

7 U.S. Commission on Civil Rights (USCCR), Funding Federal Civil Rights Enforcement (1995), pp. 33-35 (hereafter

cited as USCCR, Funding Federal Civil Rights Enforcement); John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Isler, Assistant Staff Director, Office of Civil

Rights Evaluation (OCRE), USCCR, Feb. 6, 1998, attachment, "Subject: CRD Performance Plan as Mandated by

GPRAResponse to Request for Documents No. 10"

(hereafter cited as CRD Performance Plan as Mandated by

GPRA); and John Wodatch et al., Chief, Disability Rights

15
the Civil Rights Division, the Disability Rights

Section (DRS) handles these title II implementation, enforcement, regulatory, coordination, and

technical assistance responsibilities to address

and prevent discrimination based on disability.8

Civil Rights Division

Mission and Responsibilities

Established in 1957, the Civil Rights Division

of the Department of Justice is responsible for

enforcing civil and criminal statutes, the Constitution, and Executive orders.9 Although CRD initially focused on voting and post-Civil War criminal statutes, the Civil Rights Act of 196410 expanded its authority." Under that act, CRD receives, investigates, and litigates charges of discrimination in places of public accommodation,

elementary through postsecondary schools, public

facilities owned by State or local governments,

programs or activities receiving Federal financial

assistance, and employment.12 In 1980, Executive

Order 1225013 expanded the authority of CRD.

The order empowered CRD to: assist other Federal agencies in developing standards and procedures for civil rights enforcement; initiate cooperative programs among agencies, including the

development of sample memoranda of understanding to improve the coordination of laws covered by the order; evaluate civil rights laws and

regulations to improve their enforcement; and

Section, Civil Rights Division, U.S. Department of Justice,

interview, statement of Wodatch, Washington, D.C., Sept. 3,

1997, pp. 2-3 (hereafter cited as DOJ September 1997 interview).

8 CRD Performance Plan as Mandated by GPRA; John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Is ler,

Assistant Staff Director, OCRE, USCCR, Feb. 6, 1998, attachment, "Subject: Mission and Functions Statements

Response to Request for Documents No. 5," p. 5.; DOJ September 1997 interview, statement of Wodatch, pp. 2-3 ; and

DOJ, CRD, Enforcing the ADA. A Status Report from the

Department of Justice (January-March 1995), p. 3 (hereafter

cited as DOJ/CRD, ADA Quarterly Status Report (JanuaryMarch 1995)).

9 USCCR, Funding Federal Civil Rights Enforcement, p. 23.

10 28 U.S.C. §1447, 42 U.S.C. §§ 1971, 1975a-1975d, 2000a

to 2000h-6 (1994).

11 USCCR, Funding Federal Civil Rights Enforcement, p. 23.

12 Ibid.

13 Exec. Order No. 12250, 3 C.F.R. 298 (1981), reprinted in

42 U.S.C. § 2000d-1 note (1994). Exec. Order No. 12250 is

explained below.

6

develop guidelines for comprehensive employee

training in civil rights enforcement.14 During the

1980s, the Civil Rights Division's Coordination

and Review Section was authorized by Executive

Order 12250 of 198016 to coordinate the civil

rights enforcement activities of other Federal

agencies under title VI of the Civil Rights Act of

196416 and title IX of the Education Amendments

of 1972.17 The Coordination and Review Section

(a) assisted the other agencies in developing

guidelines and regulations for civil rights enforcement; (b) established procedures to govern

agencies' recordkeeping, reporting, and exchange

of information; (c) fostered cooperation among

Federal, State, and local agencies; (d) evaluated

14 Exec. Order No. 12250, §§ 1-202 tot -207, 3 C.F.R 298

(1981), reprinted in 42 U.S.C. § 2000d-1 note (1988);

USCCR, Funding Federal Civil Rights Enforcement, p. 26.

18 Exec. Order No. 12250, 3 C.F.R. 298 (1981), reprinted in

42 U.S.C. § 2000d-1 note (1994). Executive Order 12250

authorizes the Attorney General to review all "rules, regulations, and orders" of Federal agencies that implement and

enforce title VI of the Civil Rights Act of 1964 and "identify

those which are inadequate, unclear, or unnecessarily inconsistent." Id. § 1-202. In addition to title VI, this order

applies to title IX of the Education Amendments Act of 1972,

section 504 of the Rehabilitation Act of 1973, and "any other

provision of Federal statutory law which provides. . .that no

person in the United States shall. . .be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal

financial assistance." Id. § 1-201(a)(d).

Within DOJ, the Coordination and Review Section (CORS) is

responsible for monitoring the title VI implementation and

enforcement responsibilities, policies, and practices of Federal agencies that have financial assistance programs. This

oversight responsibility requires that CORS issue guidelines

on securing voluntary compliance, initiating sanctions, and

referring cases of noncompliance to DOJ. The CORS' coordinators provide technical assistance to agencies to ensure

uniform enforcement of title VI. See USCCR, Federal Title

VI Enforcement to Ensure Nondiscrimination in Federally

Assisted Programs (1996), pp. 48-49 (hereafter cited as Title

VI Enforcement). In 1995, when the Civil Rights Division

reorganized, enforcement responsibilities for section 504

were transferred from CORS to the Disability Rights Section. See Teresa Wynn Roseborough, Deputy Assistant Attorney General, Office of Legal Counsel, Memorandum for

Janet Reno re Proposed Reorganization of the Civil Rights

Division, July 7, 1994, attachment, "Reprogramming Action

FY 1994," p. 2; DOJ/CRD, ADA Quarterly Status Report

(January-March 1995), p. 5 and USCCR, Funding Federal

Civil Rights Enforcement, p. 26.

18 42 U.S.C. §§ 2000d to 2000d-4a (1994); USCCR, Funding

Federal Civil Rights Enforcement, p. 26.

17 20 U.S.C. §§ 1681-1688 (1994); USCCR, Funding Federal

Civil Rights Enforcement, p. 26.

16
the civil rights laws to improve their enforcement;

and (e) trained employees to enforce civil rights

statutes more efficiently and effectively.18

In the early 1990s, with enactment of the

ADA,19 CRD's civil rights enforcement responsibilities again increased to encompass the ADA.20

Initially, CRD's Coordination and Review Section carried out ADA legislative, regulatory, and

technical assistance activities.21 Reorganizations

within CRD have since transferred those responsibilities from the Coordination and Review

Section to the Disability Rights Section. In addition, some ADA litigation activities are carried

out by the Special Litigation Section.

CRD enforces title II and 11122 compliance by

80,000 State and local government entities and 6

million private enterprises, respectively, that are

covered by these two titles.23 The four offices

18 Exec. Order No. 12250, §§ 1-202 to 1-207, 3 C.F.R. 298

(1981), reprinted in 42 U.S.C. § 2000d-1 note (1994);

USCCR, Funding Federal Civil Rights Enforcement, p. 26.

18 42 U.S.C. §§ 12101-12213 (Supp. 1994).

20 USCCR, Funding Federal Civil Rights Enforcement, pp. 33-

35. Title III of the ADA is codified at 42 U.S.C. §§ 12181-

12189 (1994). Title III prohibits discrimination based on disability in public accommodations, commercial facilities, and

other programs in private organizations, such as those that

offer examinations and courses related to educational and

occupational certification. Ibid; see also DOJ/CRD, "Title III

Highlights"; USCCR, Funding Federal Civil Rights Enforcement, p. 25. The Equal Employment Opportunity Commission

(EEOC) has significant enforcement responsibilities for title I

of the ADA. See EEOC, "Policy Guidance: Provisions of the

ADA." Although the Civil Rights Division has investigative

and enforcement responsibilities for title III of the ADA, this

chapter focuses on title II, subtitle A, of the statute.

21 USCCR, Title VI Enforcement, p. 62.

22 Title III is not evaluated in this report. Toby Olson, Director, Region X of Northwest Disability Business Technical

Assistance Center, states, "the evaluation of the ADA should

be expanded to include implementation and enforcement of

title III. Title III presents the most significant gap in resources for ADA enforcement. The Department of Justice is

currently able to open investigations on only about forty

percent of the title III complaints filed. In contrast, ninety

percent of complaints filed under title II result in opened

investigations. The shortage of attorneys knowledgeable in

the provisions of this title along with the limitations on the

remedies available through private law suits make it extremely difficult to find attorneys willing to take on even the

most meritorious Title III suits."

23 USCCR, Funding Federal Civil Rights Enforcement, p. 25;

John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick

D. Isler, Assistant Staff Director, OCRE, USCCR, Feb. 6,

1998, attachment, "Subject: CRD Performance Plan as Mandated by GPRAResponse to Request for Documents No.

7

within CRD that receive, process, investigate,

and resolve alleged violations of title II of the

ADA are the Disability Rights, the Special Litigation, Voting, and Housing and Civil Enforcement Sections.24 In addition, the Disability

Rights Section has authority to enforce titles II

and III and can initiate litigation (a) under title

II after conducting its own administrative investigations and issuing a letter of findings upon

referral from designated Federal agencies that

conduct title II investigations;25 and (b) under

title III, upon its own investigation and if there

is reasonable cause to believe that "any person

or group of persons" is engaged in a "pattern or

practice" of discrimination or when it finds any

person or group of persons has been discriminated against and the alleged discrimination

raises an issue of general public importance.26

DOJ also may intervene or participate as ainicus

curiae in litigation initiated by other parties.27

Organization, Budget, and Staff

The Civil Rights Division is headed by the

Assistant Attorney General for Civil Rights.28

10" (hereafter cited as CRD Performance Plan as Mandated

by GPRA). Because of the growing backlog of title II cases

under the ADA, DOJ has implemented several initiatives to

assist CRD with its ADA investigative and enforcement endeavors. See DOJ September 1997 interview, p. 3. For instance, some ADA duties are performed by all 94 of the DOJ's

U.S. attorneys' offices. Ibid. CRD delegates cases to the U.S.

attorneys where policy is clear. See DOJ November 1997 interview, statement of Wodatch, p. 4. In particular, once CRD

determined the ADA requirements for telephone emergency

services, the U.S. attorneys became responsible for handling

cases related to this matter. See DOJ September 1997 interview, pp. 3-4. In addition, most States are managing title III

cases, although some have worked on title II cases regarding

access to city halls. See DOJ November interview, p. 4. Similarly, DOJ is partnering with 26 States to issue and enforce

policies concerning service animals. See DOJ September 1997

interview, p. 4.

24 USCCR, Funding Federal Civil Rights Enforcement, p. 25.

25 28 C.F.R. §§ 35.174, 35.190(6)(6), 36.503 (1997); CRD Performance Plan as Mandated by GPRA; USCCR, Funding

Federal Civil Rights Enforcement, pp. 25 and 34.

26 42 U.S.C. §§ 12188(6)(1) (1994); CRD Performance Plan as

Mandated by GPRA; USCCR, Funding Federal Civil Rights

Enforcement, pp. 25, 34.

27 See John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Isler, Assistant Staff Director, OCRE, USCCR,

July 17, 1998, Comments of the U.S. Department of Justice,

p. 1 (hereafter cited as DOJ Comments, July 17, 1998).

28 DOJ, CRD, Organization Chart (May 17, 1995). Any reference in this chapter to an "Assistant Attorney General" re-

"L 7
CRD is comprised of an Office of Redress Administration; an Administrative Management

Section; Complaint Adjudication Office; and 10

"subject matter" sections. Each is responsible for

enforcing a range of civil and criminal statutes.29

These 10 sections are: . Appellate Section

Coordination and Review Section

Criminal Section

Disability Rights Section

Educational Opportunities Section

Employment Litigation Section

Housing and Civil Enforcement Section

Special Litigation Section

Voting Section

Office of Special Counsel for ImmigrationRelated Unfair Employment Practices.

Nine of the sections are headed by Section Chiefs

who report to the Assistant Attorney General for

Civil Rights. The Office of the Special Counsel is

headed by the Special Counsel for ImmigrationRelated Unfair Employment Practices.

To fund its additional compliance and enforcement responsibilities under the ADA, CRD

received increased annual appropriations

throughout most of the 1990s.39 Resources appropriated by Congress rose by 90 percent between fiscal years 1989 ($27.8 million) and 1993

($52.7 million).31 During this 4-year period, Congress approved a CRD staff increase from 394

full-time equivalent positions (FTEs) to almost

500 FTEs.32

Between 1994 and 1996, CRD's appropriations continued to increase; and in fiscal year

fers to DOJ's Assistant Attorney General for Civil Rights.

DOJ was established in 1870. In addition to CRD, major

organizations within the Department include the Drug Enforcement Administration, Federal Bureau of Prisons, Federal Bureau of Investigation, Immigration and Naturalization Service, Community-Oriented Policing Service, Office of

the Inspector General, Office of Justice Programs, and the

U.S. Marshals Service. See DOJ, Strategic Plan: 1997-2002

(September 1997), pp. 5-6. 29 DOJ, CRD, Organization Chart (May 17, 1995).

3° John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick

D. Isler, Assistant Staff Director, OCRE, USCCR, Feb. 6,

1998, attachment, "Response to Question 1: U.S. Department of Justice, Civil Rights Division, Appropriations and

FTE (1989-1998)" (hereafter cited as Appropriations and

FTE (1989-1998)). 31 Appropriations and FTE (1989-1998). 32 Ibid.

8

1997, Congress appropriated $62.4 million to

fund CRD's activities and programs.33 Despite

these additional financial resources, CRD has

not received additional personnel since fiscal

year 1996, and the FTE level remains at 579.34

The two sections of the CRD that have enforcement responsibilities under the ADA are

the Disability Rights Section and the Special

Litigation Section (SLS). The Disability Rights

Section (DRS) is responsible for most of DOJ's

enforcement activities under the ADA and is the

focus of this report. SLS handles some ADA issues and is discussed briefly.

Generally, SLS is charged with protecting the

civil rights of persons in publicly operated institutions (such as juvenile and adult correctional

facilities, nursing homes, and facilities for persons with mental illness and cognitive disabilities) when there have been systematic violations

of such rights.35 SLS enforces civil rights protections embodied in Federal statutes such as title

II of the ADA, the Civil Rights of Institutionalized Persons Act (CRIPA),36 and section 210401

of the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA).37 These civil rights

33 John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick

D. Isler, Assistant Staff Director, OCRE, USCCR, Feb. 6,

1998, attachment, "Response to Question 1: U.S. Department of Justice, Civil Rights Division, Appropriations and

FTE (1989-1998)" and attachment, "Response to Document

Request Number 10, Civil Rights Division, Salaries and

Expenses: Crosswalk of 1997 Changes."

34 Appropriations and FTE (1989-1998). 35 John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick

D. Isler, Assistant Staff Director, OCRE, USCCR, Mar. 19,

1998, attachment, "Preliminary Information Request for the

Special Litigation Section: Response to Request for Documents

No. 3," p. 2 (hereafter cited as. Special Litigation Section);

USCCR, Funding Federal Civil Rights Enforcement, p. 25. 36 42 U.S.C. §§ 1997-1997j (1994). CRIPA authorizes the

Attorney General to institute civil actions to remedy violations of the Constitution or laws of the United States at

certain State and local residences for the developmentally

disabled, juvenile facilities, nursing homes, and prisons and

jails. 42 U.S.C. § 1997(a) (1994). 37 42 U.S.C. § 14141 (1994) (authorizing civil action by Attorney General to eliminate a "pattern or practice" of conduct by governmental employees that deprives persons of

rights, privileges, or immunities protected by the Constitution or Federal law). The SLS uses the VCCLEA as an adjunct to CRIPA cases in juvenile detention facilities where

there is a "pattern or practice" of abuse by detention officers.

See Special Litigation Section, p. 1; USCCR, Funding Federal Civil Rights Enforcement, p. 25.

18
protections include quality of care; adequacy of

food, clothing, and shelter; medical care; supervision; safety; and training programs.38 In addition, through enforcement of title III of the Civil

Rights Act of 1964,39 SLS prohibits discrimination in public facilities on the basis of race, religion, national origin, and disability.49

With respect to the ADA, SLS is responsible

for processing, investigating, and resolving complaints of alleged violations of title II, such as

pattern or practice complaints regarding activities in publicly operated mental health, mental

retardation, and juvenile facilities; nursing

homes; and other residential institutions.41 SLS

staff promote the principle that community

placement is essential for institutionalized persons whose assessed needs can be met in less

restrictive settings.42

Disability Rights Section

Creation

The Coordination and Review Section of CRD

initially handled implementation and enforcement duties under the ADA.43 In 1992, DOJ divided ADA responsibilities among three sections:

Coordination and Review, Employment Litigation, and a newly established Public Access Section.44 The Coordination and Review Section retained responsibility for administrative enforcement of title II of the ADA, the Employment

Litigation Section handled employment cases

falling under title I of the ADA, and the Public

Access Section developed technical assistance for

38 USCCR, Funding Federal Civil Rights Enforcement, p. 25.

39 42 U.S.C. §§ 2000b to 2000b-3 (1994).

40 42 U.S.C. § 2000b (1994); Special Litigation Section, p. 1.

41 USCCR, Federal Funding of Civil Rights Enforcement, p.

25; CRD Performance Plan as Mandated by GPRA. Before

"late fiscal year 1996" the SLS investigated individual title

II complaints in jails and prisons. This responsibility was

transferred to the Disability Rights Section in "late" fiscal

year 1996.

42 USCCR, Funding Federal Civil Rights Enforcement, p. 25;

CRD Performance Plan as Mandated by GPRA.

43 USCCR, Funding Federal Civil Rights Enforcement, p. 33.

44 Roseborough, Deputy Assistant Attorney General, Office

of Legal Counsel, DOJ, Memorandum for Attorney General

Janet Reno re Proposed Reorganization of the Civil Rights

Division, July 7, 1994, attachment, "Reprogramming Action

FY 1994," p. 2 (hereafter cited as Roseborough memorandum).

9

titles II and III (and enforced title III) of the

ADA.45 After less than 2 years, however, DOJ

acknowledged two problems with this arrangement. First, since complaints often raised issues

under more than one title of the ADA, the sections were duplicating enforcement efforts.46

Second, the high volume of title II complaints

received by the Coordination and Review Section

detracted from the its ability to enforce other

civil rights laws.47 Further, DOJ officials recognized that disability-related cases could be handled more efficiently and uniformly by creating

one office staffed by personnel with expertise in

disability issues and laws. Such an office also

could serve as a central point of contact for persons seeking information about or claiming violations of the ADA.48

In March 1995, CRD changed the name of the

Public Access Section to the Disability Rights

Section (DRS) and transferred personnel from

the Employment Litigation and Coordination

and Review Sections to DRS.49 CRD assigned all

disability-related coordination and enforcement

responsibilities to the newly established Disability Rights Section. These responsibilities included all ADA regulatory, enforcement, technical assistance, and certification activities, as well

as similar activities required by section 504 of

the Rehabilitation Act.50

49 Ibid. See also John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Is ler, Assistant Staff Director, OCRE,

USCCR, June 3, 1998, DRS Response to Commission's Information Request, pp. 2-3 (hereafter cited as DRS June 3,

1998, Response).

48 Roseborough memorandum, p. 2.

47 Ibid., p. 3; USCCR, Funding Federal Civil Rights Enforcement, p. 33. In fiscal year 1992, the Coordination and

Review Section received 575 ADA complaints and began

investigating 301 of them. In fiscal year 1994, the number of

complaints was 1,414; and CORS began investigating 692.

DOJ, CRD, Salaries and Expenses FY 1993, p. DOJ, CRD,

Salaries and Expenses FY 1994, p. 19; DOJ, CRD, Salaries

and Expenses FY 1996, p. 18; USCCR , Funding Federal

Civil Rights Enforcement, p. 33.

48 Roseborough memorandum, p. 2.

DOJ/CRD, ADA Quarterly Status Report (January-March

1995), p. 3.

50 DOJ/CRD, ADA Quarterly Status Report (January-March

1995), p. 3.

19 BEST COPY AVAILABLE
Mission and Responsibilities

The Disability Rights Section aims to

"provide equal opportunity for people with disabilities in the United States by vigorously and

effectively implementing the Americans with

Disabilities Act (ADA)."51 To accomplish this

goal, DRS focuses its efforts on enforcement, certification, regulatory, coordination, technical assistance, and mediation activities.52

According to DRS staff, almost 100 percent of

staff time and financial resources are used to

enforce titles I, II and III of the ADA.53 For example, DRS is the only Federal agency authorized to litigate against State and local government employers under title I. DRS enforces titles

II and III by investigating complaints and doing

compliance reviews. DRS staff may also litigate

cases based on title II complaints when DRS has

investigated and issued a letter of findings, cases

referred to DRS by other Federal agencies, or

cases already being litigated by private parties.

Because litigation requires significant resources,

however, DRS generally will litigate only when

other attempts to resolve complaints, such as

mediation and formal settlement agreements,

have failed.54 DRS staff estimate that approximately 40 percent of staff time and resources are

used for title II technical assistance and enforcement, and approximately 60 percent of staff

time and resources are used for title I enforce51 John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick

D. Is ler, Assistant Staff Director, OCRE, USCCR, Mar. 19,

1998, attachment, "Subject: Mission, Function, Responsibilities, Planning, Organization, Staffing, and Budget, DRS

Response to Request for Documents No. 1," p. 1 (hereafter

cited as Mission, Function, Staffing, and Budget).

52 Ibid.

53 DRS June 3, 1998, Response, p. 2. Approximately 4 per- cent of staff time is devoted to coordination and certification

activities, some of which fall under section 504 of the Rehabilitation Act. Ibid.

54 Under section 513 of the ADA, 42 U.S.C. § 12212, the

ADA regulations "encourage" the "use of alternative means of dispute resolution, including settlement negotiations,

conciliation, facilitation, mediation, fact-finding. . .and arbitration. . .to resolve disputes arising under the Act." 28

C.F.R. § 35.176 (1997). If a public entity refuses to negotiate

toward voluntary compliance, or if negotiations are unsuc- cessful, a designated agency "shall refer the matter to the

Attorney General with a recommendation for appropriate

action." 28 C.F.R. § 35.174 (1997). See also Mission, Function, Staffing and Budget, p. 1-2.

10

ment and title III technical assistance and enforcement.55

DRS performs other functions related to titles

I, II, and III of the ADA. For example, DRS is

responsible for developing regulations to implement titles II and 111.56 In addition, because DOJ

is a member of the U.S. Architectural and

Transportation Barriers Compliance Board

(Access Board), DRS staff participates in the development of ADA guidelines on building and

facilities accessibility.57

DRS also handles requests from State and local government entities to certify that their architectural codes comply with ADA require- ments. To help State and local jurisdictions

achieve certification, DRS provides technical assistance and does detailed evaluations of developing codes. Similarly, for the private sector,

DRS will review model architectural codes to

determine compliance with ADA accessibility

re quirem e nts.58

DRS staff and grantees provide free, extensive technical assistance to the public on the

ADA. This technical assistance is offered in several formats. DRS receives more than 163,000

calls a year to its toll-free ADA information

phone line, however, most technical assistance is

provided in ADA publications, including a series

of technical assistance manuals and questions

and answers documents. Many of these publications are available on DRS' Web site or by fax on

demand, and are also distributed to 15,000 public libraries. Some technical assistance is provided in the form of video.59

The ADA is the first of a new generation of

civil rights laws in which Congress assigned

Federal agencies not only the duty to enforce,

but also to inform all parties (persons with dis55 DRS June 3, 1998, Response, p. 2.

56 See 42 U.S.C. § 12134 (1994). See also Mission, Function,

Staffing and Budget, p.2.

57 See 29 U.S.C. § 792 (1994). See also Mission, Function,

Staffing and Budget, p. 2; DOJ September interview, p. 2.

DRS' participation in the development of ADA Standards for

Acceptable Design requires that the section staff use innovative methods to solicit comments from corporations, governments, architects, and the disability community.

59 See 42 U.S.C. § 12188 (1994). See also Mission, Function,

Staffing and Budget, p. 2.

59 Mission, Function, Staffing and Budget, p. 3. See chap. 7 for

an indepth discussion of DOJ technical assistance activities.

20
abilities and covered entities) of their responsibilities and rights under the law.69 DRS is now

tailoring technical assistance to specific issues of

limited scope, such as its "ADA Guide for Small

Businesses" document; initially, the Section created materials that were more comprehensive

and technical, like legal treatises.61 This change

has been made in response to feedback DRS has

received from those persons who have requested

or used technical assistance materials.

Since June 1996, DRS also has had responsibilities under sections 212 and 213 of the Small

Business Regulatory Enforcement Fairness Act

of 1996 (SREFA).62 SREFA requires all agencies

that regulate small businesses to publish Small

Business Compliance Guides and provide

"informal small entity guidance" on request.63

Finally, DRS is responsible for adjusting to

new issues as its staff sees them developing.

This is a particular strength of DRS.64 Examples

of such issues under title III include: (1) NCAA

cases involving the scholarship eligibility of students with learning disabilities; (2) the trend in

movie theater design to stadium-style seating,

which presents particular problems for persons

who use wheelchairs; and (3) the use of interpreters in hospitals, although most title II issues

arise in contexts such as courts and prisons; in

fact, over half of the title II complaints DRS receives come from prisoners.65 Approximately

one-quarter of the complaints DRS receives are

about hotels (under title III). In the emerging

area of insurance, DRS concentrates its resources on cases involving automobile or home

insurance matters rather than health or life insurance to minimize the impact of complex factfinding that would arise from dealing with actuarial issues. Most of these_ cases fall under title

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

Interview, April 16, 1998, p. 3 (hereafter cited as Wodatch

interview). 61 Ibid., p. 3. 62 Pub. L. No. 104-121, §§ 212, 213, 110 Stat. 857, 858-59

(1996) (codified at 5 U.S.C. § 601 note (Supp. II 1997)). This

act requires agencies that regulate small businesses to establish a program that advises businesses on complying with

statutes and regulations. Id. § 212; CRD Performance Plan

as Mandated by GPRA. 63 CRD Performance Plan as Mandated by GPRA. 64 Wodatch interview, p. 3. 65 Ibid.

11

III, including a brief filed by DRS in a case

challenging a cap in medical benefits that was

significantly lower for persons with AIDS.66

Organization, Budget, and Staff

The Disability Rights Section is led by a Section Chief who is responsible for the overall administration of the Section and who reports to

the Assistant Attorney General for Civil Rights

through a Deputy Assistant Attorney Genera1.67

DRS has three Deputy Chiefs who report directly to the Section Chief.68 Each Deputy Chief

leads a team of six to seven attorneys, an architect, a paralegal, and a secretary. Each team is

assigned to cover ADA cases arising within a

specific group of States.69 Deputy Chiefs supervise all stages and aspects of litigation, review

technical assistance documents, and assist the

Section Chief in management and substantive

ADA policy matters."

Several positions in DRS report directly to

the Section Chief. These include a Special Legal

Counsel, a Special Litigation Counsel, a Technical Assistance Program Manager, and a Supervisory Attorney for Certification and Coordination.

Supervisory Attorneys for Investigations and

Office Administration also report to the Section

Chief, but through a Deputy Chief.71 These

management positions, along with the Deputy

Chiefs, form a Management Team that assists

the Section Chief with various responsibilities,

such as deciding administrative or policy issues.

With the exception of the Supervisory Attorney

for Office Administration, all of these management officials also provide disability rights

training and technical assistance to other Federal agencies, disability rights organizations,

66 Ibid. 67 DOJ, DRS, Organizational Chart (Aug. 21, 1997); John

Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Isler, Assistant Staff Director, OCRE, USCCR, Mar. 19, 1998,

attachment, "Subject: Mission, Function, Responsibilities,

Planning, Organization, Staffing, and BudgetResponse to

Request for Documents No. 2," p. 1 (hereafter cited as Organization, Staffing, and Budget). 68 DOJ, DRS, Organizational Chart (Aug. 21, 1997); Organization, Staffing, and Budget, p. 1. 69 Organization, Staffing, and Budget, p. 1.

713 Ibid., p. 2. 71 Ibid., pp. 2-6.
and groups subject to Section 504 and/or ADA

requirements.72

The Special Legal Counsel primarily is responsible for reviewing all ADA briefs, policy

letters, technical assistance materials, and ADA

policy documents from other Federal agencies to

verify they are based on sound legal principles.

The Special Legal Counsel also participates in

the development of ADA investigations and litigation.73 The Special Litigation Counsel is responsible for litigating those cases involving significant legal issues that are likely to establish

important precedent.74 The Technical Assistance

Manager leads a multidisciplinary team of 20, including an architect/accessibility specialist,

equal opportunity specialists, program analysts,

student interns, and a secretary. In addition, the

Technical Assistance Manager supervises operation of the toll-free ADA information line and

maintenance of the DRS Web site, and coordinates technical assistance publications efforts.75

The Supervisory Attorney for Certification

and Coordination also supervises a multidisciplinary team of attorneys, architects/accessibility

specialists, civil rights program specialists, and a

secretary. In addition to managing DOJ's coordination and certification activities, this Supervisory Attorney is CRD's liaison to the Architectural and Transportation Barriers Compliance

Board.76

The Supervisory Attorney for Investigations

oversees all stages of complaints processing, including intake, investigation, mediation, and

negotiation. When mediation does not resolve a

case, the Supervisory Attorney for Investigations

decides how such cases should proceed. This Supervisory Attorney also decides which title II

cases DOJ should investigate and which it

should refer to other agencies, and makes recommendations to the Deputy Chiefs as to which

title I and title III cases to "open."77

The Supervisory Attorney for Office Administration supervises those employees involved in

72 Ibid., p. 6.

m Ibid., p. 3.

74 Ibid. The Special Litigation Counsel currently serves as an Acting Deputy Chief. Ibid.

m Organization, Staffing, and Budget, pp. 2-3.

76 Ibid., p. 4.

77 Ibid., p. 5.

12

the administrative activities of DRS, including a

staff assistant, two interpreters, front desk personnel, mail processing and data processing per- sonnel, student interns, and secretarial staff.

This Supervisory Attorney oversees procurement

and budget issues, mail processing, office space

allocation, and development of administrative

policies and procedures.78

DRS has 23 staff attorneys, 19 of whom work

in the Enforcement/Litigation Unit, and 15 investigators. /9 Investigators are expected to have

strong investigative skills and a thorough understanding of the ADA." DRS also has six architects who advise attorneys and investigators

on technical matters and review State accessibility or building codes that have been submitted

to DOJ for certification.81 Other DRS personnel

include 14 technical assistance staff, 7 certification and coordination staff, and several support

staff.82 In total, DRS is composed of more than

70 professional and support staff persons,83 up

from 22 in 1992 when the section was called the

Public Access Section and had fewer responsibilities.84 DRS anticipates a staff of 73 for fiscal

year 1998.85

To fund DRS' activities and programs, Congress appropriated $9.25 million in fiscal year

1997 and $10 million in fiscal year 1998.86 Attorney General Janet Reno has asked Congress for a

13.7 percent increase in funding for fiscal year

1999 to continue vigorous enforcement of the

78 Ibid., pp. 5-6.

79 John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick

D. Is ler, Assistant Staff Director, OCRE, USCCR, Mar. 19,

1998, attachment, "Subject: Mission, Function, Responsibilities, Planning, Organization, Staffing, and Budget Response to Request for Documents No. 3," pp. 1-7

(hereafter cited as Organization, Staffing, and Budget

Document 3).

88 DOJ interview, Nov. 7,1997, p. 4.

81 Organization, Staffing, and BudgetDocument 3, pp. 2-7.

82 Organization, Staffing, and Budget, pp. 1-4.

83 DOJ, DRS, Organizational Chart, Aug. 21,1997.

84 USCCR, Federal Funding of Civil Rights Enforcement, pp. 33-34.

CRD Performance Plan as Mandated by GPRA.

86 Ibid. The fiscal year 1998 budget figure is an estimate.

Ibid.

22
ADA.87 This additional funding, $1.27 million,

would enable the Disability Rights Section to hire

additional attorneys, investigators, mediators,

and architects.88 Additional funds would be used

as follows: (1) $507,000 for four attorneys and four

investigators, as well as funds for architects, and

others who serve as prelitigation consultants to

increase enforcement efforts; (2) $263,000 in increased funding for two attorneys and three specialists to help other Federal agencies enforce section 504 of the Rehabilitation Act and title II of

the ADA; and (3) $500,000 in additional funding

to expand the mediation program.89

Use of Computer Technology

Information about the Disability Rights Section can be obtained from the DRS' ADA home

page99 or from the home page of the Civil Rights

Division.91 These Web sites provide helpful information about DRS, including DRS' address

and phone numbers for voice and TDD. The purpose of the DRS and a listing of the Section's responsibilities are available. For instance, DRS

informs Internet users that it engages in technical assistance activities to raise public awareness of the ADA. There also is an ADA toll-free

information line for both voice and TDD which

includes a fax-on-demand service allowing the

public to have ADA publications faxed directly to

their home or office 24 hours a day. According to

DRS, the ADA home page on the Internet receives up to 70,000 hits per week.92 A standard

form for filing a complaint under title II is available by fax, and this fax number is listed on the

Web site.

Staff Training

Soon after the ADA became law, Department

of Justice staff and outside disability rights advocates conducted initial training for staff who

87 DOJ, "Attorney General Reno Requests Increased Funding in FY 1999 to Continue Enforcing the Americans With

Disabilities Act," Press Release 98-045, Feb. 3, 1998, p. 1.

88 Ibid.

89 Ibid., p. 2.

90 <http://www.usdoj.gov/crt/ada/adahoml.htm>.

91 <http://www.usdoj.gov/crt>.

92 Ruth Lusher, Supervisor of Technical Assistance Program,

DRS, CRD, DOJ, Response to Questions, April 1998, p. 3.

13

would be handling ADA cases.93 At that time

staff attended a 5-day training program on all

titles of the ADA, the regulations, the ADA

Standards for Accessible Design, different types

of disabilities, and issues of significance to persons with disabilities. The Disability Rights

Education and Defense Fund (DREDF) conducted the training as part of a contract with the

Equal Employment Opportunity Commission

(EEOC). The initial training also included several inhouse training sessions on the regulations

and standards of the ADA. In addition, training

sessions from outside groups about disability

specific issues were held.94 Recently, Assistant

U.S. Attorneys and DRS conducted a 2-day

training session for the U.S. Attorney office staff,

and last year DRS provided similar training for

the investigators.95

DRS staff acknowledges the necessity for

training, since the ADA is a very complex statute.96 Generally, DRS staff believe that the

training they have been given regarding the

ADA has been more than adequate and has allowed them to perform their jobs wel1.97 Members of the investigative staff indicated that the

on-the-job training they have received is better

than any other training they could get, particularly because every ADA case is different from

the one before.98 One investigator, who responded to calls on the ADA information line for

2 years, feels that this was a beneficial form of

training.99

93 John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick

D. Is ler, Assistant Staff Director, OCRE, USCCR, Mar. 19,

1998, attachment, "Response to Request Questions 1-3:

Staff Training (hereafter cited as Staff Training).

94 Ibid.

95 Bebe Novich, Trial Attorney, DRS, CRD, DOJ, interview

in Washington, DC, Apr. 15, 1998, p. 2 (hereafter cited as

Novich interview); DOJ Comments, July 17, 1998, p. 2.

98 L. Irene Bowen, Deputy Chief, DRS, CRD, DOJ, interview

in Washington, DC, Apr. 14, 1998, p.2 (hereafter cited as

Bowen interview).

97 Ron Whisonant, Investigator, DRS, CRD, DOJ, interview

in Washington, DC, Apr. 15, 1998, p.2 (hereafter cited as

Whisonant interview); Robb Wolfson, Investigator, DRS,

CRD, DOJ, interview in Washington, DC, Apr. 15, 1998, p. 2

(hereafter cited as Wolfson interview). See also Novich interview, p. 2.

98 Whisonant interview, p. 2; Wolfson interview, p. 2.

Whisonant interview, p. 2.

23
ADA training is an ongoing process. When

the toll-free ADA information line was established in early 1994 and new technical assistance staff were hired, two 3-day training sessions were held. These sessions covered titles II

and III of the ADA, other disability rights laws,

procedures for handling information line calls,

and resources available from Federal, regional,

or State agencies. '°°

Training is a high priority and is based on staff

needs.'°' The Disability Rights Section periodically holds training for its staff and the staff of the

U.S. attorneys' offices. Investigators, technical

assistance staff, and new attorneys have participated in a 3-day session on titles II and III. Attorneys are given training when they become part of

the DRS staff.102 Two days of training on all titles

of the ADA for U.S. attorney office staff was provided by DRS staff. In addition, EEOC staff provided 2 days of training on title I for all DRS staff.

DRS staff also sends several attorneys to attend the District of Columbia Bar Association's

annual ADA Enforcement and Compliance Update. These 1-day training sessions, conducted by

members of the DC Bar and DRS, focus on keeping attorneys abreast of recent court rulings and

continuing to build their litigation skills.'03 In addition, individual staff members pursue outside

training opportunities on a continuing basis,

through bar organizations, other professional organizations, and private training providers.104

Continuous training also takes place through

unit, team, and staff meetings. For example, the

technical assistance/ADA information line staff

meet twice monthly for training and discussion

of ADA requirements and information line procedures. DRS staff also are provided with other

internal forms of training such as (1) team

meetings to discuss the status and development

of the ADA law, (2) discussions on what needs to

100 Staff Training.

101 Renee Wohlenhaus, Deputy Chief, DRS, CRD, DOJ, interview in Washington, DC, Apr. 14, 1998, p.2 (hereafter

cited as Wohlenhaus interview).

102 Bowen interview, p. 2.

103 Staff Training.

104 Ibid.

14

be updated, and (3) discovery updates, which

look at the ADA laws and rules.105

The effectiveness of training for DRS staff is

evaluated through written or oral feedback.'06

One DRS trial attorney indicated the training

that DRS provides to its attorneys generally is

"more than adequate" for them to perform their

jobs effectively. However, she believes the Section could benefit from providing attorneys more

training to enhance their litigation skills.107 Currently, very little training, formal or informal, is

provided for litigation.' °8

DRS architects provide training on the ADA

standards and how they are applied, to other

DRS staff members, inspectors, other architects,

and builders.m9 Architects also work in the areas

of technical assistance and certification.' 0

Past Performance

The Disability Rights Section is the newest

component of the CRD. Created in 1995, it was

the Attorney General for Civil Rights' response

to the public's call for a section devoted to enforcing titles II and III of the American with

Disabilities Act, and his reorganization to

strengthen the Coordination and Review's title

VI efforts.111

The Disability Rights Section was not created

under ideal conditions. Staff were assigned from

other sections, primarily the Coordination and

Review Section, 112 which affected that Section's

ability to carry out its responsibilities. Furthermore, DRS inherited both a large number of

complaints and pending inventory to be addressed by a relatively small staff. Almost immediately after the passage of the ADA, the

CRD began ADA investigations in 1,168 cases

and litigation in 5 cases during fiscal year 1993.

1°5 Allison Nichol, Deputy Chief, DRS CRD, DOJ, interview

in Washington, DC, Apr. 14, 1998, p. 2 (hereafter cited as

Nichol interview).

106 Staff Training.

107 Novich interview, p. 2.

108 Ibid.

109 Ellen Harland, Architect, DRS, CRD, DOJ, interview in

Washington, DC, Apr. 14, 1998, p. 2 (hereafter cited as

Harland interview).

110 Ibid.

111 See USCCR, Title VI Enforcement, pp. 62,134.

112 See ibid., pp. 62-63.

24
These complaints were handled within the Coordination and Review and the Public Access sections until DRS was created.113 Because of other

responsibilities, the Coordination and Review

Section could not address the ADA complaints

effectively.114

Due to insufficient resources and staff, the

number of completed investigations has decreased since fiscal year 1994. In addition, the

pending inventory rose from 980 in fiscal year

1993 (before DRS) to 1,850 in fiscal year 1994.115

For fiscal year 1995, CRD requested an additional 10 full-time staff for DRS. However, the

final appropriation reduced DRS staff by 12,

leaving DRS with 46 full-time employees, 2

fewer than in fiscal year 1994.116 The fiscal year

1996 budget did not request any additional staff

for the Section.

CRD estimates that as a result of DRS' limited resources, the number of ADA investigations will continue to decrease, while the pending inventory of complaints will increase.117 Because of the volume of complaints and limited

investigative staff, DRS does not open all ADA

complaints for investigations.118 CRD is attempting to address some of these problems. In a

report released in 1997, the National Council on

Disability reported that the CRD is working with

U.S. attorneys nationwide on ADA enforcement

and is using its mediation program in the ADA

complaints process.116 By 1997 approximately

113 In fiscal year 1994, DRS had 48 staff members. USCCR,

Funding Federal Civil Rights Enforcement, p. 34. 114 "The Public Access Section had no non-ADA responsibility. The reorganization transferred disability rights responsibilities (and some staff) from the Coordination and Review

Section and the Employment Litigation Section to the Public Access Section, which was then renamed to reflect the

fact that nearly all of the Civil Rights Division's disability

rights responsibilities would be handled by this Section. The

primary reason for the change was to free Coordination and

Review Section resources to coordinating the enforcement of

other civil rights statutes (e.g., title VI and title IX) by Federal agencies." DOJ Comments, July 17, 1998, p. 2. 115 USCCR, Funding Federal Civil Rights Enforcement, p.

34. 116 Ibid., p. 35. 117 Ibid. 115 Wodatch interview, p. 5. 113 National Council on Disability, National Disability Policy: A Progress Report: July 26, 1996-October 31, 1997

(Washington, DC: National Council on Disability, Oct. 31,

15

350 professional mediators in 42 States had received ADA training and were mediating complaints referred by DOJ on a pro bono basis.120

Approximately 90 percent of DOJ's ADA complainants have opted for mediation, and 82 percent of these complaints have been mediated

successfully.121

Another major area in ADA enforcement is

technical assistance, including outreach and

education activities. To carry out its technical

assistance responsibilities, the DRS has disseminated numerous technical assistance documents, operated an information telephone line,

and used technology to get information on the

ADA to the public.122

The accomplishments of DRS are positive

signs that CRD is making strides in its enforcement of the ADA. The DRS Section Chief has

stated that, on the whole and considering the

limited resources, DRS has established a broadbased, strong enforcement program that is beginning to improve conditions and remove barriers for people with disabilities in their everyday

lives.123 The Section Chief also stated that to address a wide range of issues that surface

throughout the nation, DRS enforces the ADA by

handling a mix of large-scale, precedent-setting

cases and smaller scale, community- or individual-type cases.124 According to the DRS Section

Chief, DRS has enforced the ADA by: (1) participating in litigation to gain access to emergency

911 services for persons with hearing impairments, (2) acting to ensure equal employment for

persons with disabilities by concentrating on

precedent-setting issues, (3) challenging job requirements in cases involving an emergency

medical technician with hearing loss and a firefighter with monocular vision, (4) intervening in

litigation against the City and County of Denver

and the Denver Police Department regarding its

pattern and practice of employment discrimination against persons with disabilities, and (5)

providing consultation to CRD's Appellate Sec1997), p. 31 (hereafter cited as NCD, National Disability

Policy: A Progress Report). 120 Ibid., p. 32. 121 Ibid. 122 Ibid, p. 31. 123 Wodatch interview, p. 2. 124 Ibid.

25
tion in submitting amicus briefs, e.g., the Eleventh Circuit Court of Appeals in a case challenging the applicability of title II to public employment.125

DRS also has handled cases based on what

the Section Chief referred to as "right to citizen

participation." These cases have involved issues

such as accessibility of town halls, courthouses,

and other municipal buildings, jury service, and

police treatment of persons with disabilities. Although the Department's Appellate Section handles cases in Federal courts of appeal in which

the constitutionality of the ADA is challenged by

State and local governments, DRS also has spent

a significant amount of time working in this area

by providing support to the Appellate Section

and defending the constitutionality of the ADA

in district court cases.126

DRS also has sought to enforce the ADA by

opening doors of opportunity for persons with

disabilities. For example, DRS has obtained consent decrees in cases involving companies that

provide exam preparation courses, such as

Bar/Bri, and has filed amicus briefs in cases

challenging mental health inquiries by professional licensing entities.127

Strategic Planning

U.S. Department of Justice

The DOJ strategic plan for 1997-2002 guides

the department's budget and sets forth DOJ's

mission, long range goals, strategies for meeting

goals, and indicators to measure performance

during the next several years.128 Attorney General Reno indicates that the plan is a "living

document" and that the Department intends to

modify and update it based on ongoing comments and feedback from Congress and the public.129 The strategic plan reflects the mandate of

the Government Performance and Results Act of

125 Ibid.

126 Ibid.

127 Ibid., pp. 2-3.

128 DOJ, Strategic Plan 1997-2002, Message from the Attorney General and p. 1.

129 Ibid.

16

1993 (GPRA):139 to administer programs effectively and focus on outcomes.131

The plan is structured according to DOJ's

major responsibilities, rather than by its bureaus, divisions, offices, and other components.

These responsibilities include:

Investigating and prosecuting criminal offenses

Assisting State and local governments

Enforcing Federal laws (including civil rights

statutes) and defending the Nation's interests

Administering immigration laws fairly and

effectively

Protecting society by confining detainees and

prisoners in safe and secure environments

Administering the judicial system at the Federal, State, and local levels

Efficiently managing endeavors related to

law enforcement, legal representation, and

immigration132

For each of these major responsibilities, the

plan outlines several goals, strategies to accomplish them, and indicators to measure their attainment.133 For only a few of its responsibilities

does DOJ establish goals that either allude to or

explicitly address the needs of persons with disabilities. For instance, with respect to enforcing

Federal laws and defending the Nation's interests, DOJ's first priority is to protect the civil

rights of all Americans by promoting compliance

with the civil rights laws.134 To secure the civil

rights of all Americans, DOJ intends to protect

laws and programs that promote opportunity for

"traditionally excluded individuals," recruit the

support of State attorneys general in enforcement actions, and strengthen relations with

other Federal agencies that enforce major civil

rights statutes.135 DOJ stresses that a major

element of its strategic planning process is ongoing evaluation of its major programs and ini130 Pub. Law. No. 103-62, § 2, 107 Stat. 285, 285 (1993)

(codified at 31 U.S.C. § 115 note (1994) (Congressional

Findings and Statement of Purposes)).

131 DOJ, Strategic Plan 1997-2002, Message from the Attorney General and p. 1.

132 DOJ, Strategic Plan 1997-2002, pp. 7-25.

133 Ibid.

134 Ibid., p. 12.

135 Ibid.

26
tiatives.136 DOJ's Office of the Inspector General

will assess performance.137

DOJ's strategic plan includes a summary of

resources, systems, and processes that are critical to goal achievement and a somewhat brief

description of how its goals and objectives will be

achieved. DOJ does not (1) address key external

factors that could affect achievement of these

goals, (2) provide a description of how program

evaluations will be used in establishing goals, or

(3) provide a schedule of future program evaluations in its strategic plan. These factors were

supposed to be included in all Federal agencies'

strategic plans.

Civil Rights Division

CRD's most recent mission and goals statement includes more direct references to persons

with disabilities. CRD's overall mission is:

To vindicate the constitutional and Federal rights of

persons who have been subjected to discrimination on

the basis of race, color, gender, disability, religion,

familial status, and national origin; and in so doing,

to deter others from engaging in discrimination.138

CRD's six general goals, in summary, are:

Reduce police and other official criminal misconduct, and eliminate violent activity by private citizens

Prevent or eliminate barriers to full participation in the electoral process

Eliminate discrimination in employment,

credit transactions, and housing and educational opportunities

Protect the constitutional and statutory

rights of institutionalized individuals

Ensure that public services, programs, and

activities are accessible to persons with disabilities

Eliminate immigration-related discriminatory employment practices139

136 Ibid., p. 30.

137 Ibid., p. 31. The Office of the Inspector General also does

special reviews at the request of senior DOJ officials or Congress. Ibid., pp. 31-32.

138 CRD Performance Plan as Mandated by GPRA.

139 Ibid.

17

Disability Rights Section

The Disability Rights Section obtained the

assistance of disability and civil rights groups to

develop a strategic plan.140 In its plan, DRS explicitly addresses ADA title II's goals and objectives.141 The plan's six priorities, in summary,

are:

Ensure that new construction of public facilities covered under the ADA is in compliance

with title II (as well as title 111)142

Challenge policies and eligibility criteria that

exclude individuals with disabilities from

programs and services

Litigate basic issues related to reasonable

accommodations

Undertake an active amicus program to assist in defining key statutory terms, such as

"individual with a disability," "undue hardship," and "fundamental alteration"

Monitor Federal agencies' enforcement of

ADA's title II and section 504

Partner with Federal, State, and local agencies, as well as the general public, to ensure

the broadest possible enforcement of laws

that protect individuals with disabilities from

discrimination143

Title II Implementation, Enforcement,

and Compliance Activities

Regulatory and Policymaking Functions

Regulations

The ADA required the U.S. Attorney General

to develop and announce final regulations on

title II, subtitle A, within 1 year of the ADA's

enactment,144 and on July 26, 1991, DOJ issued

the implementing regulations.145 The regulations

149 DOJ September interview, p. 4; DRS June 3, 1998, Response, pp. 3-4.

141 John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick

D. Isler, Assistant Staff Director, OCRE, USCCR, Mar. 19,

1998, attachment, "Subject: Disability Rights Section Strategic

Plan, DRS Response to Request for Documents No. 4

(hereafter cited as Disability Rights Section Strategic Plan).

142 DRS priority issues on building construction/alterations

led to a program in which staff determine where construction is occurring and ensure that ADA requirements are

satisfied. See DOJ September interview, p. 4.

143 Disability Rights Section Strategic Plan.

"4 42 U.S.C. § 12134(a) (1994).

146 Nondiscrimination on the basis of disability in State and

local government services, 56 Fed. Reg. 35,716 (1991)
are divided into seven subparts. Subpart A describes the purpose and application of the ADA,

as well as its relationship to other laws.148 It also

provides definitions of key terms used in the

ADA, and establishes requirements for notice,

self-evaluation, and the adoption and publication

of grievance procedures for public entities with

50 or more employees.147 Subpart B discusses

subjects such as the ADA's general prohibition

against discrimination, illegal use of drugs, retaliation, maintenance of accessible features,

and personal devices and services.148 Subpart C

discusses the ADA's prohibition against employment discrimination.149 Subparts D and E

establish ADA requirements for program accessibility and communications, respectively.159

Subpart F sets forth the compliance procedures

that must be followed under title II.151 Subpart

G lists the Federal agencies that, in addition to

DOJ, have designated investigative and enforcement responsibility for particular title II

State and local government compliance issues.152

DOJ's title II, subtitle A, regulation adopts

the prohibitions of discrimination based on disability that were established under section 504 of the Rehabilitation Act of 1973 and extends

them to protect disabled individuals who participate in State and local activities that do not receive Federal financial support.153 Furthermore,

the regulation implements standards to determine the presence of discrimination on the basis

of disability; defines "disability," "qualified individuals with a disability," and other terms used

(codified at 28 C.F.R. pt. 35 (1997)). Title II, subtitle A,

regulations are not limited in coverage to State and local

"executive" agencies. Rather, they apply to the activities of

the judicial and legislative branches of State and local governments as well. See 28 C.F.R. §§ 35.102(a), 35.105 (28

C.F.R. Part 35 applies to public entities; public entity means

any instrumentality of a State or States or local government) (1997).

146 28 C.F.R. §§ 35.101--.103 (1997).

147 Id. §§ 35.104.107.

148 Id. §§ 35.130.135 (1997).

149 Id. §§ 35.140 (1997).

150 Id. §§ 35.149.151 (subpart D) (1977); Id. § 35.160.164

(1997).

151 Id. §§ 35.170-178 (1997).

152 Id. §§ 35.190 (1997).

153 Id. § 35.102 & app. A § 35.102 (analysis of § 35.102)

(1997).

18

in civil rights statutes; and establishes a complaint mechanism for resolving allegations of

discrimination.154

One final, significant point is that the title II

regulations state that designated agencies, including DOJ, must investigate and attempt to

resolve every complaint received.155 DOJ officials

acknowledge that they do not investigate every

complaint and are considering amending the

regulations to eliminate this requirement.156

The regulations and the accompanying section by section analysis are comprehensive and

clear. They provide specific guidance about official DOJ policy on issues not specifically addressed in the statute itself, such as the applicability of title II to public employment.157 This

very specificity, however, has led some Federal

district courts to disagree with DOJ policy as

extending too far from the intended scope of title

II. For example, in several public employment

cases filed under title II, courts have ruled that

title II does not apply to employment.158 The

"flow of precedent," however, has been to find

that title II does encompass employment dis154 Id. §§ 35.104, 35.130, 35.170 (1997).

156 Id. § 35.172 (1997). This requirement applies to each

"complete complaint." Id. This is defined as a written, signed

statement that contains the complainant's name and address and describes the alleged discriminatory action in

sufficient detail to inform the agency of the nature and date

of the violation. Id § 35.103.

156 DRS Staff, DOJ, interview in Washington, DC, November

3, 1997, p. 4.

157 See, e.g. 28 C.F.R § 35.140 (1997).

158 In Decker v. Univ. of Houston, 970 F. Supp. 575 (S.D.

Tex. 1997), the plaintiff, a tenured college professor, filed an

employment discrimination claim under title II. The court

held that the plain language of 42 U.S.C. § 12132 providing

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" did not encompass employment claims. The

court noted the lack of an explicit provision governing employment discrimination and that the phrase "services, programs, or activities," as a whole, "focuses on a public entity's

outputs rather than inputs." Id. at 578 (citing Bledsoe v.

Palm Beach Soil and Conversation Dist., 942 F. Supp. 1439,

1443 (S.D. Fla. 1996)). In Iskander v. Rodeo Sanitary Dist.,

1995 U.S. Dist. LEXIS 1620, No. C-94-0479--SC, at *24

(N.D. Cal. Feb. 7, 1995), aff'd mem., 121 F.3d 715 (9th Cir.

1997), the court held that title II was limited to "the rendering of services to the public by public entities."
crimination claims.159 This and other issues are

discussed in greater detail in the next chapter.

Policy

DRS provides ADA guidance through regulations, arnicus curiae briefs, technical assistance

materials, and policy letters that are written on

an ongoing basis as responses to inquiries about

the ADA.160 These methods of developing policy

do not provide an opportunity for disability advocacy groups to participate in the process,

whereas if formal guidance documents, similar

to those produced by the EEOC, were developed

and published the public could offer comment.161

Between 1990 and 1997, DOJ issued more than

200 policy letters and 700 technical letters to

assist and guide Federal agencies, State and local governments, education officials, the disability community, and the general public on the

requirements and implementation of the ADA.

There is no real difference between the technical

and policy letters in terms of their importance or

the deference they should be accorded nor are

these letters binding on DOJ.162 Information

provided in response to one letter does not set

binding precedent that DOJ must follow in all

159 See, e.g., Bledsoe v. Palm Beach City Soil & Water Conservation Dist., 133 F.3d 816, 820-25 (11th Cir. 1998)

(relying on final clause of § 12132 which protects individuals

from being "subjected to discrimination by any [public] entity," ADA legislative history, DOJ implementing regulations and the "flow of precedent"). This decision, the only

circuit court decision on point to date, reversed the decision

on which the Decker court relied. For an extensive list of

decisions holding that employment discrimination claims

may be brought under title II of the ADA, see Bledsoe, 133

F.3d at 820 n. 4.

160 DRS Staff, DOJ, interview in Washington, DC, Sept. 3,

1997, p. 5; Wodatch interview, pp. 3-4. DOJ amicus curiae

briefs, technical assistance materials and policy letters are

discussed in greater depth in chaps. 3 and 4.

161 Wodatch interview, p. 4.

162 Breen interview, p. 2. DRS notes that staff respond to

inquiries received from Congress and members of the public.

These letters are not officially referred to as "policy" or

"technical" letters. The letters referred to throughout this

report as "policy" letters are those that are identified by the

Civil Rights Division's Freedom of Information Act (FOIA)

office as "core letters." They represent the letters in which a

question was addressed for the first time. The letters referred to in this report as "technical" letters are those that

are not "core" or "policy" letters. None of these letters represents a binding legal interpretation of the ADA. See DOJ

Comments, July 17, 1998, p. 2.

19

subsequent cases, although DRS staff attempt to

provide consistent responses to similar inquiries.

Technical and policy letters have been issued in

response to inquiries from members of Congress,

private organizations, State and local agencies,

and private citizens about provisions of the statute, as well as requests for clarification or interpretation of ADA provisions.163

According to one DRS staff member, the biggest technical assistance issue where more guidance needs to be provided is program accessibility.

Even though the concept of program accessibility

has existed since the enactment of section 504 of

the Rehabilitation Act of 1973,164 knowledge and

understanding in this area are lacking, particularly in smaller towns where many title II entities

do not have sufficient staff to work on these issues.166 To address this gap, DRS has developed a

grant for small towns and another grant for title

II entities. DRS is also going to produce materials

for small towns that are similar to the ADA guide

for small businesses, which should help small

towns become aware of DRS and other resources.166 Often officials, from any size of local

government, argue that their lack of knowledge

and understanding is because no persons with

disabilities live in their community.167

Coordinating and Monitoring Federal

Agencies' Enforcement Efforts

DRS has oversight and coordination responsibilities for the seven executive agencies that

DOJ's July 26, 1991, regulations on title II, subpart A, authorized to enforce title II compliance

in the Nation's approximately 80,000 State and

local governmental units.168 The U.S. Departments of Agriculture, Education, Health and

Human Services, Housing and Urban Development, Interior, Labor, and Transportation are

charged with investigating and resolving com163 See DOJ Title II/ADA Policy Letters and Title II/ADA

Technical Letters, 1990Present.

164 Jim Bostrom, Architect, DRS, CRD, DOJ, interview in

Washington, DC, Apr. 16, 1998, p. 2.

165 Ibid.

166 Ibid.

167 Ibid.

168 56 Fed. Reg. 35,694, 35,715-46,722-23 (1991) (codified at

28 C.F.R. § 35.190); USCCR, Funding Federal Civil Rights

Enforcement, p. 25.

29
plaints of discrimination on the basis of disability in State and local governments' programs,

activities, and services.169 DOJ designated these

seven agencies in particular, rather than all

Federal agencies that administer financial assistance programs, because the Department considered them to have the largest civil rights

compliance staffs and the most experience in

complaint investigations and disability issues.170

DOJ assigns these Federal agencies title II enforcement responsibilities for particular State

and local agencies based on their respective major functions.171 Therefore, the agencies investigate and resolve complaints of alleged violations

of the ADA related to their substantive areas of

concern.172

168 28 C.F.R. § 35.190 (1997).

170 Id., pt. 35, app. A § 35.190 (1997). Some of the designated

agencies are "well staffed," such as the Departments of Education, Health and Human Services, and Housing and Urban Development. In contrast, at agencies such as the Department of Interior, civil rights enforcement responsibilities are handled by only two staff persons. See DRS Staff,

DOJ, interview in Washington, DC, Nov. 6, 1997, p. 5

(Statement of John Wodatch).

171 28 C.F.R. pt. 35, app. A § 35.190 (1997). The division of

responsibilities is made functionally rather than by the name

of the public entities. For instance, all State and local agencies

(regardless of their names) that administer, implement, or

regulate services or programs relating to lands and natural

resources fall within the Department of Interior's jurisdiction.

28 C.F.R. pt. 35, app. A § 35.190 (1997).

172 DRS Staff, DOJ, interview in Washington, DC, Sept. 3,

1997, p. 4. These agencies also have substantial responsibilities for enforcing section 504. See 56 Fed. Reg. 35,695

(1991). The Federal agencies ensure title II, subtitle A, compliance in the State and local governments that administer

programs and services in the following functional areas:

(1) U.S. Department of Agriculture: Farming and the raising

of livestock, including extension services.

(2) U.S. Department of Education: Education systems, elementary and secondary schools, institutions of higher education (other than health-related schools), and libraries.

(3) U.S. Department of Health and Human Services: Schools

of medicine, dentistry, nursing, and other health-related

schools; health care and social service providers and institutions, including "grass-roots" community services organizations and programs; and preschool and daycare programs.

(4) U.S. Department of Housing and Urban Development:

State and local public housing, and housing assistance and

referral.

(5) U.S. Department of Interior: Lands and natural resources, including parks and recreation, water and waste

management, environmental protection, energy, historic and

cultural preservation, and museums.

20

DRS acts as a clearinghouse for complaints

under title II by determining which designated

agency should investigate a given complaint and

referring the complaint to that agency. Referrals

are made by DRS civil rights program specialists

who may also provide advice and support to the

designated agency involved. DRS staff request

that each designated agency notify DRS when

cases are resolved.173

The preamble to the title II, subtitle A, regulations states that the use of delegation agreements reduces duplication of efforts and thereby

strengthens overall civil rights enforcement.174

Aside from this provision, however, Congress did

not address the overlapping responsibilities of

Federal agencies when designing the ADA. For

example, some public entities, such as residential treatment centers, must comply with both

the Fair Housing Act and the ADA. In addition,

the Department of Housing and Urban Development has enforcement responsibilities under

both of these laws.175 Under title II, DRS does

not have independent authority to handle cases

under the purview of the designated agencies

and it must first get a referral from an agency to

take on a case.176 However, the agencies have

not referred many cases to DRS.177 Although

DRS staff have expressed uneasiness about

changing the ADA, eliminating the requirement

for a referral from the designated agencies

would be one change that could improve the

ADA.178 ADA enforcement might be improved by

eliminating the designated agencies' responsibilities under the ADA and centralizing all enforcement duties within DRS, however, at pres-

(6) U.S. Department of Labor: Labor and the work force

programs, services, and regulatory activities.

(7) U.S. Department of Transportation: All transportation

programs and activities, including highways, public transportation, traffic management (nonlaw enforcement), automobile licensing and inspection, and driver licensing. See 28

C.F.R. § 35.190 (1997).

173 DRS June 3, 1998, Response, pp. 12-13.

174 28 C.F.R. pt. 35, app. A § 35.190 (1997).

175 24 C.F.R. § 100.1 (1997); 28 C.F.R. § 35.190(b)(4) (1997);

Blizard interview, p. 2.

176 28 C.F.R. 35.174 (1997) (referral to Attorney General by

designated agency when voluntary compliance negotiations

are unsuccessful).

177 Wodatch interview, p. 6.

178 Ibid.

30
ent, DOJ and DRS do not have the resources to

assume these responsibilities.179

DRS staff acknowledges it could improve

ADA enforcement through better communication

and information sharing with the designated

agencies.180 Once a month a coordination meeting, which involves the designated agencies, is

held at EEOC.181 Currently, communication occurs almost exclusively between DRS' coordination staff and one or two designated agency contact persons. Expanded communication between

the respective enforcement staffs could foster

information sharing and referral of cases.182 For

example, DRS enforcement staff recently informed Department of Transportation (DOT)

staff that they could get compensatory damages

in ADA cases. It appears DOT staff previously

were not aware of this authority.183

Many accessibility complaints fall under the

jurisdiction of the designated agencies. For example, complaints about school building accessibility are investigated by the Department of

Education. One DRS architect said she is unaware of any instances when staff from the Department of Education or any of the other designated agencies have contacted DRS architects

for advice or assistance on building accessibility

complaints.I84

One official at the Department of Education

(DOEd) has expressed satisfaction with the interaction with DRS, stating that "DRS has been responsive to all of our requests for consultation on

any given issue, including meeting with our staff

as the need arose, consulting with staff over the

telephone on an as-needed basis, and sharing informational materials."185 In monitoring and coordinating DOEd's enforcement activities, DRS

participates in monthly meetings to discuss employment-related disability issues. The Director of

DRS and his staff have been involved in consulta179 Ibid.

180 Ibid., p. 7.

181 Nichol interview, p. 4.

182 Novich interview, p. 4.

183 Wodatch interview, p. 7.

184 Harland interview, p. 3.

185 Eileen Hanrahan, U.S. Department of Education, letter

to Frederick D. Isler, Assistant Staff Director, OCRE,

USCCR, Apr. 3, 1998, Response to letter of March 18,

1998.," p. 1 (hereafter cited as Hanrahan response).

21

tion on a number of issues, and DRS also issues

DOEd policy guidance and interpretations periodically. DOEd has found these approaches to be

effective.186 An official at the Department of Labor

(DOL) states that generally their contacts with

DRS have been informal, although DRS has been

helpful in assisting DOL in determining jurisdiction in complaints and providing guidance in

processing and investigating complaints that present new or novel issues.187

DRS staff reports that monitoring and evaluating the designated agencies' resources devoted

to ADA enforcement efforts is difficult, because

these agencies do not maintain separate budgets

for this statute.188 Only a small percentage of

cases that DOJ has referred to other Federal

agencies have been closed, and DOJ does not

require the recipient agencies to provide feed- back on the referred cases until they are

closed.189 In addition, DOJ does not record or

track ADA complaints that are received directly

by other Federal agencies (i.e., cases not referred

to other agencies by D0J).190 The lack of available information on title II complaints filed with

designated agencies other than DOJ or the

agencies' enforcement activities has prompted

the California Department of Rehabilitation to

conclude that "apparently no oversight by DOJ

of the enforcement activities of the other 11 Offices of Civil Rights charged with enforcement

occurs. We say this because we have no information available from those entities regarding what

kinds of enforcement activities they have undertaken."191 Overall, most coordination with other

186 Ibid., pp. 1-2.

187 Annabelle T. Lockhart, U.S. Department of Labor, letter

to Frederick D. Isler, Assistant Staff Director, OCRE,

USCCR, Apr. 23, 1998, Response to letter of March 18, 1998,

p. 1.

188 DRS Staff, DOJ, interview in Washington, DC, Nov. 6,

1997, pp. 4-5 (statement of Elizabeth Savage, Counsel to

Acting Assistant Attorney General for Civil Rights).

189 DRS Staff, DOJ, interview in Washington, DC, Sept. 3,

1997, pp. 4-5.

199 Ibid., p. 5.

191 Michelle Martin, Staff Services Analyst, Department of

Rehabilitation, State of California Health and Welfare

Agency, letter to Nadja Zalokar, Director, Americans with

Disabilities Act Project, USCCR, May 11, 1998, attachment,

p. 12 (hereafter cited as Martin letter). The Department of

Rehabilitation added, "Many of the calls we receive on the

technical assistance line concern access and equal treatment

31
agencies on title II issues occurs informally (e.g.,

through telephone contact); no memoranda of

understanding or guidelines on coordination

have been issued to date.192 DRS staff believes

the title II regulations assign responsibilities to

specific agencies and this should serve in place

of a memorandum of understanding.193 However,

if an agency is about to issue a Letter of Finding

that seems "ground breaking," generally it will

consult with DOJ.194

Certifying State and Local Building Codes

Under title II of the ADA, State and local

governments must follow specific architectural

standards in new construction and alteration of

their buildings and must relocate programs or

remove barriers from inaccessible older facilities.195 The ADA permits but does not require

State and local governments to apply to the Assistant Attorney General for Civil Rights for

"certification that their building codes meet or

exceed minimum ADA requirements for accessibility and usability of places of public accommoin education and transportation. We routinely give out the

number for the enforcement offices of those agencies, yet no

statistics are available on the number of complaints received, considered to have merit, or resolved." Ibid. 192 DRS Staff, DOJ, interview in Washington, DC, Nov. 6,

1997, p. 2 (statement of Ruth Lusher, Technical Assistance

Program Manager). In 1994, DOJ and EEOC jointly published guidelines on the coordination of complaints concerning employment discrimination under the ADA and

section 504 of the Rehabilitation Act of 1973 that may fall

within the jurisdiction of more than one agency. See 29

C.F.R. §§ .1640.1-1640.13 (1997). 193 Blizard interview, p. 2. 194 DRS Staff, DOJ, interview in Washington, DC, Nov. 6,

1997 p. 2 (statement of Janet Blizard, Supervisory Attorney). 195 28 C.F.R. §§ 35.149.151 (1997); DOJ/CRD, Guide to

Disability Rights Laws, p. 3. Public entities are not required

to make each of their existing facilities accessible. See id. §

35.150 (1997). According to DOJ and EEOC, removal of

physical barriers, such as stairs, from all existing buildings

is not required by ADA, title II, as long as programs and

services are made accessible to individuals who cannot use

"inaccessible existing facilities." State and local governments

can make programs accessible by altering existing facilities;

acquiring or constructing additional facilities; or relocating a

service or program to an accessible building, including an

individual's home. Similarly, a State or local entity can provide an aide to assist a disabled persc,n in obtaining services.

See id. § 35.150(b) (1997); EEOC e;icl DOJ, ADA Questions

and Answers, p. 18; and DOJ/CRD, Title II Highlights, p. 3.

dation and commercial facilities."196 Under section 308 of the ADA, DOJ is authorized to certify, after a public hearing, that these State and

local building codes meet or exceed ADA Standards for Accessible Design.197 In performing

this responsibility, DRS staff advise State and

local officials on strategies to make their building standards on par with the ADA.198

The process of certification requires that DRS

staff analyze each submitted code thoroughly,

provide public notice, and hold public hearings on

the proposed certification.199 On May 20, 1993,

DOJ responded to its first request for certification

of a State's building accessibility codes.299 DOJ

provided the State of Washington with a "side by

196 Deval Patrick, Assistant Attorney General, CRD, DOJ,

letter to Sen. Mark Hatfield, re: Building Code Certification

(Equivalency to the ADA), May 16, 1995, reprinted in 8 Nat'l

Disability L. Rep. (LRP) ¶ 33. 197 42 U.S.C. § 12188(b)(ii) (1994); John Wodatch, Chief,

DRS, CRD, DOJ, letter to Frederick D. Is ler, Assistant Staff

Director, OCRE, USCCR, Mar. 19, 1998, attachment,

"Response to Request for Documents No. 1," p. 2; see also

DOJ September interview, p. 2. The certification procedure

was established as part of the enforcement mechanism for

title III to facilitate implementation of the new construction

and alteration requirements applicable to public accommodations and commercial facilities. Construction in compliance with a certified code may be offered as evidence of

compliance with title III in an ADA enforcement hearing.

Code certification has no legal significance for new construction or alterations under title II. DOJ Comments, July 17,

1998, p. 3. 199 DOJ/CRD, ADA Quarterly Status Report (January-March

1997), p. 8. The DRS staff also represent the Attorney General in her statutory role as a member of the U.S. Architectural and Transportation Barriers Compliance Board

(Access Board), which allows the Section to contribute to the

development of ADA building and facilities accessibility

guidelines for the entities subject to the Department's

regulations and all federally financed buildings. CRD Performance Plan as Mandated by GPRA; 29 U.S.C. § 792(a)

(1994) (Attorney General is DOJ representative on Access

Board).

The ADA Standards for Accessible Design apply to new construction and alterations, and can also be used to determine

the appropriate types of barrier removal in completed facilities. See John Wodatch, Chief, DRS, CRD, DOJ, letter to

Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR,

Feb. 6, 1988, attachment, "Subject: Mission and Functions

StatementsResponse to Request for Documents No. 5," p.

6. DRS' participation in the development of ADA Standards

for Acceptable Design requires that the Section staff use

innovative methods to solicit comments from corporations,

governments, architects, and the disability community. 199 CRD Performance Plan as Mandated by GPRA. 200 DOJ/CRD, ADA Status Report (Apr. 4, 1994) p. 13.

22

32
side" analysis of its building standards relative to

those of the ADA, and indicated areas of minor

discrepancy between Washington's codes and the

ADA Standards for Accessible Design 201 DOJ

considered Washington's facility accessibility

codes to be "very progressive" but not quite on par

with the ADA.202 In July 1994, DOJ informed the

State of Washington that the Department's analysis revealed a few remaining areas in which the

State's codes were not fully equivalent to the ADA

standards.203 DOJ stated that once the State corrected the gaps, the State of Washington would

receive a preliminary certification of its building

codes.204 The State of Washington, in turn, notified DOJ that by November 1994, it expected to

modify the facility standards in the areas identified by the Department.205 On March 29, 1995,

DOJ certified that the Washington State Regulations for Barrier Free Design met or exceeded the

new construction and alteration requirements of

the ADA.206 Similarly, before granting certification to the Texas Accessibility Standards, DOJ

issued a "preliminary determination" in May

1996, requesting public comment on this provisional certification, and scheduled a second hearing in August 1996.207 After public hearings were

held in Austin, Texas, and Washington, D.C., DOJ

issued its second State building code certification

and declared that Texas' Building Accessibility

Standards met or exceeded ADA requirements.208

As of May 1998, DOJ had determined that accessibility codes in Washington, Texas, Maine,

and Florida are equivalent to ADA title III requirements for new construction and alterations.209 DRS officials contend that certification

furthers the Federal objective of ensuring uniform

levels of accessibility for individuals with disabili201 Ibid.

202 DOJ/CRD, ADA Quarterly Status Report (July-September

1999), p. 8.

203 Ibid.

204 Ibid.

205 Ibid.

206 DOJ/CRD, ADA Quarterly Status Report (January-March

1995), p. 9

207 DOJ/CRD, ADA Quarterly Status Report (April-June 1996),

p. 10.

208 DOJ/CRD, ADA Quarterly Status Report (July-September

1996), p. 9.

203 DRS June 3, 1998, Response, pp. 13-14.

23

ties throughout the Nation.210 In addition, DRS

expects that its code certification provision will

increase the number of buildings constructed in

compliance with the ADA's Standards for Accessible Design and thereby avoid "costly litigation."211

Complaints Processing Procedures

Under the ADA, individuals who believe that

they have been subjected to discrimination on

the basis of disability by a public entity such as a

State or local government agency are entitled to

file a complaint within 180 days from the alleged

discriminatory action.212 DOJ considers a title II

complaint filed on the date it is first filed with

any Federal agency.213 A "complete complaint" is

a written statement that contains the aggrieved

individual's name and address, as well as a detailed description of the public entity's alleged

discriminatory action.214

DRS and the other designated agencies are

charged with receiving, processing, investigating, and resolving complaints of alleged violations under ADA title II, subtitle A.215 All complaints must be in writing, unless an alternative

procedure is necessary as a "reasonable modification" for an individual with a disability; a person cannot walk in to DRS' offices in Washington, D.C., and file a complaint.216 The Disability

Rights Section has a standard ADA title

II/section 504 complaint form that instructs individuals who perceive that they have been discriminated against by a public entity to provide

(a) their name and address and that of the alleged discriminating government entity or organization; (b) the date on which discrimination

occurred; (c) a description of the discriminating

acts; (d) efforts (if any) made by complainant to

resolve the claim through internal grievance

210 CRD Performance Plan as Mandated by GPRA.

211 Ibid.

212 28 C.F.R. §35.170(a)(b) (1997).

213 Id. § 35.170(b).

214 Id. § 35.104.

215 DOJ/CRD, Title II Highlights; DOJ/CRD, A Guide to

Disability Rights Laws, p. 3; DOJ September interview

(statement of Wodatch), pp. 2-3; DOJ/CRD, ADA Quarterly

Status Report (January-March 1995), p. 3; USCCR, Funding

Federal Civil Rights Enforcement, pp. 25, 34; CRD Performance Flail as Mandated by GPRA.

216 Whisonant interview, pp. 2-3.

33
procedures of the public entity or organization;

and (e) additional entities (if any), such as the

DOJ or other Federal, State, or local civil rights

agencies, to which the complaint was filed.217 If

an incomplete complaint is received and the

complainant does not comply with the request

for additional information, the Civil Rights Division is entitled to close the complaint.219

Complaints raise concerns about jails, prisons, and inmates; State licensing boards; effective communications; access to police departments, town halls, courts, and other public programs and facilities; emergency services; and

other issues.219 These issues are discussed further in chapter 3.

According to its Section Chief, DRS receives

more complaints than staff can handle and many

complaints are not "opened" as cases to be investigated.220 DRS tends to open more cases involving State and local government issues, because the Section is required to do so.221 The Section Chief also said that he would like for staff to

be able to respond to all complaints and mentioned the possibility of prioritizing complaints

similarly to EEOC's categorized process to improve efficiency. He noted, however, that this

would require a change in the Department's implementing regulation for title II of the ADA.222

DRS staff have attempted to become more efficient in processing more complaints, but limited

resources are a continuing constraint. DRS has

fewer than 15 investigators to respond to complaints from the entire United States. Although

disability rights organizations have suggested

that DRS should handle more high profile cases

and initiate more litigation against State and

local agencies, DRS' position is that a good en217 DOJ, CRD, DRS, Title II of the Americans with Disabilities Act/ Section 504 of the Rehabilitation Act of 1973 Discrimination Complaint Form (undated) (hereafter cited as

DOJ/CRD, Title II Discrimination Complaint Form). 218 28 C.F.R. § 35.171(c)(2) (1997). 219 CRD Performance Plan as Mandated by GPRA; DOJ

September interview, pp. 2 and 4; DOJ November interview,

p. 1; and DOJ/CRD, ADA Quarterly Status Report (AprilJune 1997), pp. 3 and 7; and DOJ/CRD, ADA Quarterly

Status Report (April-June 1996), p. 2. 220 Wodatch interview, p. 5. 221 Ibid., p. 6. 222 Ibid., p. 5.

24

forcement program has a mix of large and small

impact cases.223

Mail Process

When mail arrives at DRS, two support staff

members open and review it, record the information in the Correspondence Tracking System

(CTS) and distribute it.224 New complaints are

distributed by State and placed in the intake file

cabinet. Additional information on previously

received complaints is given to the person listed

in CTS. If the complaint is already in the Case

Management System (CMS), then a staff member will update CMS and distribute the complaint to the assigned person in CMS. Any material relating to title II complaints that already

have been referred to designated agencies goes

to a staff member. Policy requests, certification

materials, interagency correspondence, and

regulatory issues are given to Certification and

Coordination staff. Mail from Members of Congress is routed to the appropriate staff member,

logged in, and then distributed for a response.

Referrals from other agencies are given to the

appropriate staff member to (1) enter into CMS,

(2) assign "DJ" (case) numbers, and (3) create a

file and distribute to deputies according to

teams. Deputies assign the matter to an attorney, issue a right to sue letter or other closing, or

return to the appropriate staff for additional investigation.225

Disability rights professionals have criticized

DRS for its inefficiency in responding to complaints.226 Staff from 5 out of 10 federally funded

223 Ibid., p. 5. 224 Some correspondence, mostly related to ongoing private

cases, is received over the Internet and is not recorded in

CTS. This mail is reviewed and distributed for appropriate

action by another staff member. Mail addressed to a particular person, except the Section Chief, is distributed to

that person without being recorded in the CTS. Requests for

technical assistance are given to the person in charge of

technical assistance and priority mail or mail with court

captions are given to deputies or to the assigned attorney if

the case is already in the case management system (CMS). 225 John Wodatch, Chief, DRS, letter to Frederick D. Isler,

Assistant Staff Director, OCRE, USCCR, Mar. 19, 1998,

attachment, "Subject: Complaints ProcessingDRS Mail

Procedure, DRS response to Request for Documents No. 1",

pp. 1-2 (hereafter cited as Complaints ProcessingDRS

Mail Procedure). 226 See, e.g., Carl Suter, Associate Director, Office of Rehabilitation Services, Illinois Department of Human Services,

34
disability and business technical assistance centers (DBTACs) report that many individuals in

their regions have complained about or even

given up on DRS' complaint processing system.227 Another advocate wrote the Commission

that as of April 1998 his agency had not received

a response from DOJ regarding a complaint filed

in 1995.228

DRS staff has acknowledged that in the past

they did not notify complainants that their correspondence had been received or whether DRS

would be acting on the complaint. In addition to

the anxiety this caused complainants, it negatively affected several areas within DRS. In particular, complainants often would call the information line to ask about the status of their complaints, causing the workload of the phone operators to increase and interfere with their ability to respond to substantive questions.229 To

increase efficiency, DRS staff began to review

the complaint processing procedures on a continuing basis. For example, approximately a year

and a half ago a new Supervisory Attorney for

Investigation and the Supervisory Attorney for

Administration overhauled and streamlined intake processing, which led to improvements in

the overall complaint processing procedure and

reduced backlogs.230 The basic steps in DRS'

letter to Frederick D. Is ler, Assistant Staff Director, OCRE,

USCCR, June 9, 1998, enclosure, pp. 2, 3 ("The ADA is limited mainly by the inability of those agencies responsible for

enforcement to act in an expedient manner. . .The major

policy issue is the slow manner in which ADA complaints

are dealt with.") (hereafter cited as Suter letter).

227 David Esquith, National Institute on Disability and Rehabilitation Research, U.S. Department of Education, interview in Washington, DC, Jan. 8, 1998, addendum to interview, Memorandum from Robin Jones to David Esquith,

Jan. 6, 1998, pp. 2-5.

228 Lawrence Berliner, General Counsel, Connecticut Office

of Protection and Advocacy for Persons with Disabilities,

letter to Frederick D. Is ler, Assistant Staff Director, OCRE,

USCCR, Apr. 20, 1998, p. 2 ("Our experience with DOJ has

been unsatisfactory. Agency personnel and consumers have

filed complaints with the DOJ and do not receive letters of

confirmation or the results of any DOJ intervention. For

example, in one case filed in 1995. . .this agency has received no response from any DOJ official, to date. Consequently we were forced to close the matter in the absence of

any DOJ response in almost three years.").

228 Wodatch interview, p. 5.

238 Whisonant interview, p. 1; Wolfson interview, p. 1.

25

complaint processing procedures are summarized below.231

Intake Process

When DRS receives a complaint, staff notifies

the complainant by postcard that DRS has received the complaint.232 This postcard informs

the complainant that within 8-12 weeks DRS

will send additional information on the action

DRS has decided to take.233 If a complaint is

"opened" for investigation, the complainant is

informed and is asked to sign a Privacy Act release. After this initial contact, DRS does not

keep the complainant informed of the progress of

the investigation and negotiation.234 Although

the time varies, typically there is a delay of 4 to

8 weeks between the time DRS receives a complaint and when the complainant actually receives a response from DOJ.235 After the investigation is completed, the complainant is informed

of how the complaint was resolved.

An investigator's typical caseload fluctuates

between 35 to 55 active cases. Investigators

submit monthly reviews to the Supervisory Attorney for Investigation, informing her how soon

they anticipate closing cases. This helps the Supervisory Attorney monitor caseloads and determine whether investigators should be given

additional cases.236

DRS investigators receive new complaints

from their assigned States at least once a

231 Complaints ProcessingDRS Mail Procedure.

232 DRS has temporarily stopped mailing postcard notices

because some complainants were receiving the DRS response to the complaint before the postcard. DOJ Comments, July 17, 1998, p. 3.

233 Eve Hill, Supervisory Attorney, Investigation, DRS,

CRD, DOJ, interview in Washington, DC, April 14, 1998, p.

2 (hereafter cited as Hill interview); Whisonant interview;

Wolfson interview, p. 3.

234 Hill interview, p. 3. DRS reviews all incoming complaints. From this review, DRS determines whether the

complaint should be opened for a more indepth investigation. Generally, complaints that are not opened for further

investigation are closed because they fail to state a claim,

they are untimely, or the are already being reviewed by the

agency with proper jurisdiction. DOJ Comments, July 17,

1998, p. 2.

235 Whisonant interview, p.'3.

238 Wolfson interview, p. 2; Whisonant interview, p. 4.

35

r, ho'N n on A .
week.237 The DRS staff member responsible for

intake reviews complaints, summarizes their

contents on intake cover sheets, and makes preliminary recommendations for disposition.238 A

staff attorney reviews the recommendations

made by investigators, updates CTS, and distributes the complaints to the appropriate staff

person. Recommendations involving requests for

litigation, such as ainicus participation or intervention in existing cases, are forwarded to the

Deputy Chiefs. Other documents are sent to the

Supervisory Attorney for Investigation.239

The Supervisory Attorney for Investigation

reviews the staff attorney's recommendations.

Deputy Chiefs further review title III recommendations. If mediation is recommended, the

complaint is sent to the Technical Assistance

Team. If further investigation is recommended,

CTS is updated and the complaints are distributed to support staff for: (1) entry in CMS, (2)

assignment of DJ (case) numbers, and (3) creation of case files. Another staff member then

generates a privacy release letter to be sent to

the complainant. The complainant must sign

and return this release letter before DRS will

conduct further investigation. Once DRS receives a signed release form the case file is then

returned to an investigator. Some cases are then

forwarded to the DRS staff attorney who supervises the U.S. Attorney referral process. Other

cases are handled by investigators and DRS staff

attorneys.240

If the complaint goes through the U.S. attorney referral process, the DRS staff attorney forwards the complaint to a paralegal who then

contacts the U.S. attorney.241 If the U.S. attorney

accepts the complaint, the paralegal then forwards the complaint to the Mail/Dockets staff

for: (1) entry into CMS, (2) the assignment of a

DJ number, and (3) file creation. The paralegal

then forwards the complaint to the U.S. attor237 Complaints ProcessingDRS Mail Procedure, p. 2. Since

April 1998, new complaints have been distributed to a staff

member who reviews and summarizes each new complaint

and recommends a disposition. DOJ Comments, July 17,

1998, p. 3.

238 Whisonant interview, p. 2.

239 Complaints ProcessingDRS Mail Procedure, p. 3.

240 Ibid.

241 Ibid., p. 4.

26

ney. If the U.S. attorney does not accept the

complaint, the paralegal returns the complaint

to the Supervisory Attorney for Investigation for

reassessment.

Alternate Dispute Resolution/Mediation Process

If a complaint is referred to the mediation referral process, the equal opportunity specialist/program analyst checks to ensure that a mediator will be available and a release for referral

to mediation is sent to the complainant.242 If the

complainant returns the release, the respondent

is notified of the referral, and the complaint is

then referred to the Key Bridge Foundation for

Education and Research. The Key Bridge Foundation is funded by a technical assistance grant

from the Department of Justice to train professional mediators on the requirements of the

ADA who can then handle DRS cases. The foundation has trained more than 400 mediators

from 42 States and the District of Columbia. All

mediators accepted into this mediation program

must have the following minimum qualifications:

Completion of an approved mediation training program

2 years experience mediating disputes

Knowledge of the ADA

Membership in a recognized (national or

State) professional dispute resolution organization243

Other desired qualifications include prior experience mediating civil rights disputes and familiarity with disability issues and disabilities.244

DRS staff does not directly mediate cases.248

If mediation resolves the complaint, the equal

opportunity specialist/program analyst closes the

complaint, and CTS is updated to reflect the final disposition accomplished. If mediation does

36

242 Ibid.

243 John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Isler, Assistant Staff Director, OCRE, USCCR, Feb. 6,

1998, attachment, "Preliminary Information Request for the

Disability Rights Section, Subject: Complaints Processing,

Response to Question No. 1," p. 1 (hereafter cited as Complaints Processing). To learn more about the process of mediating ADA complaints, individuals can examine the Key

Bridge Foundation for Education and Research's brochure

entitled "Want to Resolve Your ADA Complaint? Consider

Mediation."

244 Complaints Processing, p. 1.

248 Hill interview, p. 4.
not resolve the complaint, it goes back to the Supervisory Attorney for Investigation for review.

DRS staff refers cases to mediation to reduce

reliance on the formal investigation and litigation process.246 Mediation allows complainants to

get results independently, without having to

wait for DRS to navigate its case through litigation.247 DRS would not mediate in an area where

DRS wants to set precedent or where there is a

large imbalance of power between parties.248

Mediation is an informal process where an impartial third party can expeditiously help conflicting parties find mutually agreeable and satisfactory solutions to their differences and reach

a resolution, while avoiding the expense and

delay frequently associated with formal investigation and litigation.249 According to DOJ, mediation brings parties together to (a) settle their

differences through "discussion and problemsolving," and (b) achieve "win-win" solutions

rather than compromise.250

To determine which specific title II and title

III cases to refer to mediation, DOJ considers

the nature of the complaint, the availability of a

participating mediator in the complainant's general geographic location, and the ability of the

246 DOJ/CRD, A Guide to Disability Rights Laws, p. 3; CRD

Performance Plan as Mandated by GPRA; DOJ, "ADA Mediation Program," Aug. 14, 1997, p. 1 (hereafter cited as DRS,

"Description of Mediation"). From the start of the mediation

program (1993) to the end of fiscal year 1997, DRS offered 475

complainants the opportunity for mediation. Of the 475 complainants, 289 (61 percent) accepted mediation. Therefore,

DRS has referred 289 complaints (2.9 percent) of complaints

for mediation. Of the 289 complaints referred for mediation,

only 20 complaints involved title II matters. DOJ Comments,

July 17, 1998, p. 1.

247 Wodatch interview, pp. 5-6.

248 Hill interview, p. 4.

249 DOJ, "ADA Mediation Program," p. 1; DOJ/CRD, ADA

Quarterly Status Report (January-March 1997), p. 9; and DRS,

"Description of Mediation," p. 1. Many ADA disputes can be

resolved quickly and with minimal expense via the use of

competent "ADA-literate" mediators. See DRS, "Description of

Mediation," p. 1.

250 DOJ, "ADA Mediation Program," brochure, no date, p. 1

(hereafter cited as DOJ, ADA brochure). Mediation proceedings are confidential and voluntary for all participants in a

particular case. The process usually requires multiple meetings between the conflicting parties and their mediator before

an ADA case is resolved. In addition, mediators may hold

independent, private sessions with one party. See DOJ/CRD,

ADA Quarterly Status Report (January-March 1997), p. 9 and

DOJ, "ADA Mediation Program," p. 1.

27

conflicting parties to participate actively in the

mediation process.251 Cases most suitable to the

mediation process address issues such as barriers to building access, lack of accessible parking,

denied access to programs or services, lack of

alternate formats of written materials, effective

communication (e.g., denial of interpreter services or assistive listening devices), and modification of policies.252

Although DOJ is prepared to resolve title II

complaints and other ADA charges through litigation, the Department attempts initially to settle these discrimination cases through alternative dispute resolution.253 DOJ's 1997-2002 Strategic Plan explicitly mentions that the Department intends to use alternative dispute resolution where appropriate, to prevent litigation.254

Under title II of the ADA, DOJ is required to

negotiate a resolution of complaints before

starting litigation. Alternative means of dispute

resolution, such as mediation and settlement

negotiations, are encouraged to resolve claims

that allege public entities discriminated on the

basis of disability.255 As a result, many title II

claims of discrimination have been resolved

through these informal methods.256 During 1998,

251 DRS, "Description of Mediation," p. 1; and DOJ/CRD, ADA

Quarterly Status Report (January-March 1997), p. 9. A list of

the cities with mediators participating in DOJ's program is

available through the Internet. See DOJ/CRD, ADA Quarterly

Status Report (January-March 1997), p. 9. As of September

1997, ADA mediators were located in more than 100 cities and

42 States throughout the Nation. See DOJ, "ADA Mediation

Program;" and DOJ September interview, p. 3.

252 DOJ/CRD, ADA Quarterly Status Report (January-March

1997), p. 9; DRS, "Description of Mediation," p. 1; DOJ, "ADA

Mediation Program," p. 1; and DOJ, ADA brochure, p. 2.

253 NCD, ADA WatchYear One, p. 37; and DOJ, "ADA Mediation Program," Aug. 14, 1997, p. 1; 28 C.F.R. § 35.176

(1997) (ADR encouraged); id §§ 35.173.174 (designated

agency must initiate negotiations with public entity to secure

voluntary compliance, before referring matter to Attorney

General).

254 DOJ, Strategic Plan 1997-2002, p. 13; see also 28 C.F.R.

§ 35.176 (1997) (ADR encouraged).

255 28 C.F.R. § 35.176 (1997) provides that "the use of alternative means of dispute resolution, including settlement negotiations, conciliation, facilitation, mediation, fact-finding, minitrials, and arbitration, is encouraged to resolve [ADA] disputes."

258 DOJ, "ADA Mediation Program," p. 1.

3
DRS expects to develop policies and procedures

for alternative dispute resolution.257

According to DRS, as of December 31, 1997,

322 complaints had been referred to mediation.

In terms of subject matter, 204 of these complaints involved barrier removal issues, 66 involved policy modification issues, and 52 involved effective communication. In terms of outcome, 128 complaints had been successfully resolved, 20 were unsuccessfully mediated, 54

were not mediated (due to death of one party,

inability to locate a party, etc.), and 120 were

still pending.258 Complainants now appear to be

more familiar with mediation than when the

program began. DRS sends complainants in the

initial stages of a case a brochure to explain mediation. Some complainants now request mediation, and other parties refuse it.269

Disability advocates generally give DOJ's

mediation program high marks as a good alternative to litigation and recommend it be publicized more.260 In support of alternate dispute

resolution, one advocate wrote that "Mlle present method of investigating each complaint. . .is

ineffective and does not work."261

Investigation Process

Cases that are not referred to mediation or

the U.S. attorney project are investigated, negotiated, and in some cases litigated by DRS staff.

As mentioned above, once a privacy release letter is returned to DRS by a complainant, a DRS

investigator can begin a substantive investigation. The investigator first identifies the applicable legal requirements, determines if additional

information is needed, identifies additional questions that need to be asked, determines the investigative plan, and recommends appropriate

relief.262 The investigator then contacts the re257 CRD Performance Plan as Mandated by GPRA.

258 Complaints Processing, p. 2.

259 Hill interview, p. 4.

260 See, e.g., Martin letter, attachment, p. 9 ("There is a need

to bring attention and applause to DOJ's Mediation Program. It has been demonstrated that mediation can resolve

disputes quickly and satisfactorily, without the expense and

delay of formal investigation and litigation. Mediation is one

of the best ways to handle ADA complaints.").

261 Suter letter, enclosure, p. 3.

262 John Wodatch, Chief, DRS, letter to Frederick D. Is ler,

March 19, 1998, attachment, "Subject: Complaints Process.

28

spondent(s) by telephone or sends a data request.263 Respondents are contacted by telephone

when: (1) the investigator has all of the needed

information, (2) the case is not complex, (3) the

respondent is unlikely to dispute the facts, (4)

the respondent is likely to cooperate, or (5) the

case is likely to be resolved quickly and informally. A data request is sent if: (1) the respondent has a different version of the facts, (2) more

information is needed, (3) the investigator thinks

the respondent may not cooperate, or (4) DRS is

seeking a settlement agreement and/or damages.264 According to one investigator, once he

has contacted a respondent, he may not return

to the case for weeks or months, depending on

his caseload. However, backlogged cases and hot

issues such as HIV are given priority.265

Investigators conduct site visits as part of

their investigation most often in architectural

cases, but also may conduct site visits to determine credibility.266 If a site visit is needed, it can

be done at any stage of the investigation once

the respondent has been contacted. Onsite investigations are normally not done for title II complaints,267 but one investigator did a site visit for

a complaint alleging that a doctor refused to

treat a patient with AIDS.268

Investigators can start the negotiation process with respondents either over the telephone

or in writing. Often when an entity realizes that

DOJ has become involved in a complaint, that

entity will quickly provide accommodation as

required under the ADA.269 After the investigator has negotiated with a respondent, resolution

may be accomplished by (1) a letter of findings

with no violation, (2) an informal resolution, or

(3) a settlement agreement.270 A letter of resolution can be issued if a respondent already has

ingSummary of Steps in a DRS Investigation, DRS response to Request for Documents No. 1", p. 1 (hereafter cited

as Complaints ProcessingSteps in a DRS Investigation).

263 Ibid.

264 Ibid.

265 Whisonant interview, p. 3.

266 Hill interview, p. 3.

267 Whisonant interview, p. 3; Wolfson interview, p.2.

268 Wolfson interview, p.2.

269 Whisonant interview, p. 3.

279 Ibid., p. 4; see 28 C.F.R. § 35.172(a) (1997) (letter of findings); id. § 35.173 (voluntary compliance agreements).
undertaken necessary changes. In cases where

respondents will have to take significant action

to achieve compliance (such as making architectural modifications), DRS staff will draft a settlement agreement.271 In cases resolved through

negotiation, the parties are informed of the

resolution, any necessary monitoring is performed, and the file is closed. CMS is updated to

reflect the final action in the case.

If resolution is not accomplished because the

respondent does not agree to what DRS wants

and negotiations have deadlocked, then a letter

of findings with violation is issued.272 Before

DRS issues this letter, it will give the entity several chances either to sign or comply with a settlement agreement.273 This letter is an indepth

analysis of the complaint, investigation, evidence, legal requirements, and DRS' conclusion.

This letter also gives the respondent one more

chance to accept DRS' offer before the case is

referred for litigation. Cases referred for litigation must be reviewed by one of the Deputy

Chiefs and the Section Chief and, ultimately by

the Assistant Attorney General for Civil Rights

before a letter of findings is issued.274

Litigation Process

Under the title II regulations, DRS is

authorized to initiate litigation that arises from

its own investigations and on referral from the

seven designated Federal agencies that investigate and resolve ADA complaints.275 In any ADA

complaint, DRS' primary objective is to achieve

compliance with the statute.276 In general, DRS

aims to educate and negotiate, and litigation is a

271 Hill interview, p. 3.

272 Complaints ProcessingSteps in a DRS Investigation,

p. 2.

273 Whisonant interview, p. 4; see 28 C.F.R. § 35.173 (1997).

274 Complaints ProcessingSteps in a DRS Investigation, p.

1.

275 28 C.F.R. §§ 35.174, 35.190(b)(6), 36.503 (1997). See also

CRD Performance Plan as Mandated by GPRA.; USCCR,

Funding Federal Civil Rights Enforcement, pp. 25, 34.

276 DRS Staff, DOJ, interview in Washington, DC, Sept. 3,

1997, p. 3. The goal of the Disability Rights Section is to

obtain compliance rather than prove that someone has violated the law. See DRS Staff, DOJ, interview in Washington,

DC, Nov. 6, 1997 (statement of Elizabeth Savage, Counsel to

Acting Assistant Attorney General), p. 4.

29

final resort.277 However, in any case that goes to

court, all resources, including civil penalties and

compensatory damages, are used to achieve

compliance.278

DRS finds out about private litigation that

involves title II issues through a number of

sources such as advocacy groups, private attorneys involved in the cases, staff in U.S. attorneys' offices, contacts from public speaking engagements, and other continuing contacts. A

senior legal counsel also reviews information

from a computer research service and disability

and health law publications to compile clippings

which are circulated to staff.279 Some DRS staff

members expressed that a system which could

scan all documents filed in Federal courts to

identify and alert DRS to title II cases would be

ideal. There is a database in existence; however,

not all courts are part of its system.280

As of June 1998, DRS staff had initiated litigation under title II in three cases, intervened as

a party in nine lawsuits, and filed 33 amicus

briefs.281 DRS resolves some of the cases it litigates at the time a suit is filed or soon afterwards by means of a negotiated consent decree.282 Consent decrees are monitored and enforced by the Federal court in which they are

entered.283 During the 1990s, DOJ was an initiator, intervenor, and an amicus curiae in various

title II disputes that were resolved via consent

decrees.284

The average caseload of DRS attorneys

(including pending litigation and monitoring

compliance with settlements or consent decrees)

is 46 matters.285 The amount of time it takes for

277 DOJ September interview (statement of Wodatch), p. 3.

278 DOJ September interview (statement of Wodatch), p. 3.

279 Wohlenhaus interview, p. 3; Novich interview, p. 3.

289 Nichol interview, p. 3; Wohlenhaus interview, p. 3.

281 DRS June 3, 1998, Response, p. 11.

282 DOJ/CRD, ADA Quarterly Status Report (April-June

1997), p. 4.

283 Ibid. A consent decree is a judgment entered by consent of

the parties whereby the defendant agrees to stop alleged illegal activity without admitting guilt or wrongdoing. Upon approval of such agreement by the court, the government's action against the defendant is dropped. See Joseph Nolan et al.,

eds., Blacks Law Dictionary 410 (6th ed. 1990).

284 DOJ/CRD, ADA Quarterly Status Reports, various quarters.

285 DRS June 3, 1998, Response, p. 12.

39
a complaint to be resolved through negotiation

and/or litigation varies dramatically from case to

case; however, DRS staff indicate that in some

instances it could take more than a year.286 Staff

acknowledges this is not ideal, but point out the

complaint process has improved much in the

past 2 years.287

Members of the disability community have

criticized DRS for not litigating enough and negotiating or settling too frequently.288 These

critics generally believe that DRS should direct

more resources toward establishing legal precedent that will be binding on parties in subsequent cases, whereas mediation typically obtains

results for only one party. DRS' Section Chief

has responded to this criticism by stating that

(1) DRS is constrained by the regulations and by

Executive Order 12988 to try to resolve cases

before litigating, and (2) many in the disability

community do not want mediation because they

perceive it as "special treatment" provided under

the ADA but not to other groups through other

antidiscrimination laws.289

According to DRS staff, although DRS has

written amicus briefs and has intervened as a

colitigant in preexisting private litigation, the

Department has initiated litigation against public entities under title II in only three cases.280

DRS staff attribute this to the fact that staff

cannot litigate complaints falling under the jurisdiction of any of the designated agencies unless the agencies refer such cases to DRS. Thus

286 Hill interview, p. 2.

287 Nichol interview, p. 2.

288 Wodatch interview, pp. 5-6. According to DRS, after a

finding of a violation, resolution can take a variety of forms,

including informal or formal settlement agreements, consent

decrees (approved by a court), or litigation. A decision to

litigate is made only where DRS and individuals or entities

in violation of the ADA cannot agree on appropriate remedies or on interpretation of the law. In fact, the title II

regulation requires that DRS attempt to reach a voluntary

resolution of complaints prior to commencing litigation.

Also, section 1(c) of Executive Order No. 12988 requires that

before pursuing litigation, DOJ should resolve claims informally through discussions, negotiations, or settlements,

whenever feasible. DOJ Comments, July 17, 1998, p. 1. See

28 C.F.R. § 35.174 (1997); Exec. Order No. 12988, 3 C.F.R.

158 (1997).

289 Wodatch interview, pp. 5-6.

290 DRS June 3, 1998, Response, p. 11 and attachments 5

and 7.

30

far, DRS has received only a few referrals, which

may be a symptom of the designated agencies'

lack of knowledge of remedies (damages) available under title II.281 DRS staff noted this lack of

referrals has hampered the Section's enforcement efforts under title II.282 In areas where

DRS has original jurisdiction, like courts, State

and local governments tend to comply before

DRS seeks approval to litigate.293

According to DRS' Special Legal Counsel, the

Section has obtained favorable rulings in every

ADA case it has litigated, with the exception of a

few cases involving prisons.294 DRS litigation has

brought about positive changes in many areas:

clarifying curb cuts, ending unnecessary segregation of persons in institutions, ensuring accessibility to anonymous voting for persons with

mobility and sight impairments, and eliminating

improper mental health inquires in professional

licensing procedures. DRS has won important

court rulings defining what types of disabilities,

services, and contexts are covered by or trigger

obligations to comply with the ADA. DRS has

also successfully obtained consent decrees that

have had a major effect in clarifying ADA cover -

age.295

The Special Legal Counsel further sees a distinction that exists between litigation under the

ADA and other statutes, since the ADA is much

more open ended. New issues are always surfacing because the law is still being developed.296

In terms of developing ADA caselaw, he emphasized that DRS could achieve results in many

more areas if it could litigate in cases currently

handled by the designated agencies, which are

not being referred to DRS.297

291 Wodatch interview, pp. 5 and 7; Novich interview, p. 3;

Breen interview, p. 2. Designated agencies also may not be

familiar with 28 C.F.R. § 35.174 (1997). It provides that "if a

public entity declines to enter into voluntary compliance

negotiations or if negotiations are unsuccessful, the designated agency shall refer the matter to the Attorney General

for appropriate action." Id. (emphasis added).

292 Novich interview, p. 3; Breen interview, p. 2.

293 Wodatch interview, p. 6.

294 Breen interview, p. 4.

295 Ibid., pp. 3-4.

296 Ibid., p. 2.

297 Ibid., pp. 3-4.

40
Analysis of Complaint Processing Data

The Disability Rights Section has two databases, a correspondence tracking system (CTS)

and a case management system (CMS). All correspondence received by DRS is entered into and

tracked by CTS. Only the correspondence accepted for investigation, mediation, and/or litigation is entered into CMS. DRS considers CTS to

be a "pretty good" database, but considers CMS

to be "an eighties" database.298 CTS is a pilot

program, which originated in DRS, that other

sections subsequently have started to use.

DRS does not have the same database capability as EEOC. CMS is outdated and runs on a

program that only allows DRS to generate

"canned" or predesigned reports.299 The most

common standard report DRS staff generates

from the CMS database is the "OPENLIST" report, which allows staff to assess the date complaints were opened, types of respondents, number of cases per judicial district or State, and the

status of the complaint (open, closed, etc.). The

CMS database also can create a list of complaints providing the names of staff assigned to

them. These reports are produced quarterly or as

requested and made available to DRS supervisors. Other reports the CMS database can generate include lists of closed complaints by title

and disposition (outcome) and the number of

complaints that have been referred to designated

agencies.300

With different software, DRS would be able to

perform data trend analysis, which it currently

cannot do. DRS staff has discussed the merits of

a database that would be more efficient and effective.301

According to data received from DRS, a total

of 10,065 complaints was entered into DRS' CMS

database between fiscal year 1992 and fiscal

year 1997.302 This figure is an aggregate of complaints received under titles I, II, and 111.303 Between fiscal year 1993 and fiscal year 1997, the

298 Searing interview, p. 3. 299 Ibid., p. 2-3. 300 DRS June 3, 1998, Response, p. 7. 301 Searing interview, p. 2. 302 DOJ, DRS, Cordmain Data File (hereafter cited as Cordmain data file). 303 The format of the data does not allow us to separate

complaints by title.

31

average number of title II complaints opened

was 726. This number excludes complaints referred to other designated agencies. The average

number of complaints referred to designated

agencies was 590, and the average number of

investigations completed, including disposition

of referrals, was 503.304

The database appears to have numerous errors. Some of the variables listed in the dataset

do not contain values. In some instances, nearly

three-fourths of the complaints have data fields

that are empty. Reasons for missing data values

include: (1) data values just were not entered, (2)

the values may not have been known at the time

the complaint was entered into CMS and no update was done, and (3) values just were not identified for some cases.305 If DRS ever acquires the

capability to perform data analysis, it is crucial

that it have a reliable database with as few

missing values as possible. The State in which

the complaint was filed is the only variable for

which there are no missing values.

TABLE 2.1

Top States from Which Complaints Are Filed

State

Total

California

Florida

Netiv York

Texas

Michigan

Pennsylvania

Colorado

Virginia

Illinois

Ohio

Georgia

11-State total

Complaints

10,065

1,022

701

673

668

423

404

330

326

323

323

285

5,478

Source: DOJ, DRS, Cordmain Data File.

Percentage of

all complaints

100.0

10.2

7.0

6.7

6.6

4.2

4.0

3.3

3.2

3.2

3.2

2.8

54.4

According to data received from DRS, 11

States accounted for more than half of all title I,

304 DRS June 3, 1998, Response, p. 11. Fiscal year 1992 data

are not included because the low number of cases not referred would skew the average. Ibid. 305 Shirley Hillgren, Contractor, CRD, DOJ, FAX, p. 1.

41
FIGURE 2.1

Complaints by State

Source: DOJ, DRS, Cordmain Data File.

Percent of total complaints

NE 3.0 or more (10)

2.0 to 2.9 (15) 111111 1.0 to 1.9 (8)

I less than 1.0 (18)

II, and III complaints entered into CMS between fiscal year 1992 and fiscal year 1997

(table 2.1). More than 10 percent of all DRS

complaints came from California, which had a

population of well over 31 million people in

1992.306 California also has a history of active

disability rights groups.307 New York, Texas,

Pennsylvania, and Florida also accounted for a

high proportion of complaints (figure 2.1). All

four of these States also had relatively large

populations of 12 to 18 million people in

1992.308 More complaints come from metropolitan areas, such as big cities like Chi -

cago.309 Communities with independent living

306 Cordmain data file; U.S. Department of Commerce,

Bureau of the Census, County and City Data Book: 1994,

Washington, DC, Table A. States, p. 2. (hereafter cited as

1994 County City Data Book).

307 Nichol interview, p. 2,

308 1994 County City Data Book.

302 Bowen interview, p. 2.

32

centers are more active in filing title II complaints.310

Regionally, the largest proportion of all

complaints filed (37 percent) comes from the

South, although Southern States such as West

Virginia, Delaware, and Arkansas each accounted for less than 1 percent of total complaints (figure 2.1).311 Only 18 percent of all

complaints were filed from the Northeast.

Less than 1 percent of all complaints were

filed from highly rural northeastern States

such as Maine, New Hampshire, and Vermont

(figure 2.1). Midwestern States such as Nebraska and Iowa were least likely to have

complaints filed (figure 2.1).312

310 Nichol interview, p. 2.

311 Data used in this figure is based on the total number

of title I, II, and III complaints.

312 Bowen interview, p. 2.

42
The DRS database shows the disability for

2,315 complaints (table 2.2).313 Slightly morethan 30 percent of these complaints were from

individuals with a mobility impairment, either

ambulatory or nonambulatory. Twenty percent of the complaints were based on the complainants being deaf or on a medical-related

basis. Complaints also were filed by persons

with other disabilities, such as blindness, hard

of hearing, mental illness, and learning disability. Fewer than 1 percent of complaints

were from individuals with mental retardation

or speech impairment.

Inaccessibility, service delivery, auxiliary

aids, government offices, and prisons were

some of the issues raised in the complaints

filed. Some complaints identified only one issue, but it was possible for a complaint to be

TABLE 2.2

Disability of Complainant.

Percentage of

Basis Complaints complaints

Total 2,315 100.0

Alcohol 12 0.5

Blindness 117 5.1

Contagious disease 1 0.0

Deaf 457 19.7

Drugs 1 0.0

Environmental

sensitivity 71 3.1

Hard of hearing 135 5.8

HIV/AIDS 85 3.7

Learning disability 95 4.1

Low vision 38 1.6

Medical 452 19.5

Mental illness 142 6.1

Mobility impairment

ambulatory 274 11.8

Mobility impairment

nonambulatory 427 18.4

Mental retardation 2 0.1

Speech impairment 4 0.2

Other disability 2 0.1

Source: DOJ, DRS, Cordmain Data File.

313 Cordmain data file.

33

based on several issues.314 There were 5,228

title II and title III complaints that raised issues about government buildings, prisons,

public buildings, law enforcement, and

courts, due in part to their lack of accessibility (figure 2.2).315

Issues indicating inaccessibility accounted for 25 percent of complaints. More

than 48 percent of complaints filed indi- cated that service delivery was an issue.

Although DRS stated that it has done a lot

of work in the area of courthouse accessibility,316 nearly 7 percent of complaints indicated courthouses as an issue. Another issue that frequently arises under court- houses is auxiliary aids, such as interpreters, with 7 percent of complaints indicating

auxiliary aids as an issue. Professional licensing, an issue that has garnered much

attention, is not identified in DRS' database. Most title III complaints were filed

against service establishments, places of

lodging, and places of exhibition or entertainment. Complaints against these types of

public accommodations often are due to in- dividuals not being able to gain access. Nearly 22 percent of 2,657 complaints involved service establishments, 17 percent

involved places of lodging, and 16 percent of

complaints involved sales or rental establishments.

The types of discrimination for which

complainants filed title III cases included

policies, existing facilities, and auxiliary

aids. Almost 50 percent of 2,665 complainants indicated that existing facilities were a

problem.317 In terms of existing buildings, DRS has been active in cases involving

public places, such as supermarkets and

theaters.318

3" Ibid.

315 Ibid.

316 Nichol interview, p. 3.

317 Cordmain data file.

318 Wodatch interview, p. 2.

4 3
FIGURE 2.2

Issues Addressed in Complaints

2500 -

2000 -

t 1500 -

E

.a

2 1000

500 -

0

Government Prisons

office

Source: DOJ, DRS, Cordmain Data File.

Public Law

building enforcement

Issues

Courts

FIGURE 2.3

Agency to Which Complaints Were Referred

40 -

35 -

30

25 -

c

u 20-

0

15-

10 -

5-

0

DOEd DOT HHS DOI HUD DOL

Agency

Source: DOJ, DRS, Cordmain Data File.

34

44
FIGURE 2.4

Length of Time Complaint Has Remained Open

35 -

30 -

25 -

c 20 -

a>

10

5

0

1 year

Source: DOJ, DRS, Cordmain Data File.

2 years

Years

3 years 4+ years

DRS referred 1,298 complaints to six of the

seven designated agencies.319 Nearly 40 percent of these complaints were referred to the

U.S. Department of Education and 13 percent were referred to the U.S. Department of

Health and Human Services (figure 2.3). Any

complaints dealing with education systems,

including school buildings other than healthrelated schools, are referred to the Department of Education. The Department of Health

and Human Services receives complaints that

319 The number of complaints referred to designated agencies is based on the analysis of DRS' data file. According to a

memo from DOJ, DRS has referred 3,366 title II complaints

to other designated agencies, which is 49 percent of total

title II complaints. If DRS had received complaints that

were within the Department of Agriculture's jurisdiction,

those complaints would have been referred. DOJ Comments,

July 17, 1998. The designated agencies are those charged

with overseeing title II compliance of State and local governments.

35

involve health-related schools, preschool and

daycare programs, and other health care and

social service providers and institutions. According to DRS' data base, the U.S. Depart- ment of Agriculture is the only designated

agency to which it has not referred complaints.

There is concern that DRS does not open all

complaints for investigation due to limited resources, including the short supply of investigative staff. The limited number of investigators

also has had a negative effect on how long it

takes for a complaint to be resolved. Of the

10,065 complaints entered into DRS' database

between fiscal year 1992 and fiscal year 1997,

more than 5,444 complaints, accounting for 54

percent of all complaints, were still open as of

December 1997.320 Of the 5,444 complaints

329 Cordmain data file.

45
FIGURE 2.5

Length of Time to Close Complaints

40 -

35 -

30 -

25

20 -

15 .

10 -

5 -

0

Under 6 6-11

months months

Source: DOJ, DRS, Cordmain Data File.

1 year

Time

2 years 3+

years

that remained open, 33 percent had been open for 1 year and 29 percent had been

open for 4 or more years (figure 2.4).

DRS indicates that on average more than

18 months passes between the time a complaint is received and when the complaint is

investi-gated and resolved through negotiations or recommended for litigation.321 Some

complaints have closed within a couple of months and some complaints have taken more than 5 years to resolve. Among the

4,621 complaints that were closed between

fiscal year 1992 and fiscal year 1997, 35

percent were resolved within 1 year (figure

2.5). Although DRS indicated that the time

it takes to resolve complaints has decreased,

25 percent of closed complaints took 3 or

more years to resolve.322

321 Searing interview, p. 5. 322 Searing interview, p . 5; Cordmain data file.

36

Before DRS established its current group

of approximately 15 investigators, the investigative staff was overloaded with too

many cases (100 or more).323 This and other

factors led to a backlog of cases. Some DRS

staff feels that investigators are more efficient and effective in resolving complaints if

caseloads are limited to less than 60 active

cases at any one time.324 Currently, DRS

investigators have average caseloads of 35

to 55 active cases.325 In addition, each attorney has an average caseload of 46 matters,

which includes cases where compliance with

consent decrees and settlement agreements

is being monitored.

323 Searing interview, p. 5. 324 Ibid. 325 Wolfson interview, p. 2; Whisonant interview, p. 4.

4.
a Ass ssm

ev p

nt of Intl Policy,

nt = nd Enforcement

Policy Development

The U.S. Department of Justice has developed title II policy through publication of its title

II regulations, but has not issued formal policy

guidance documents on title II or specific ADA

issues. DOJ develops policy to address emerging

title II issues primarily through its technical assistance and enforcement activities) Specifically,

DRS staff develops policy through litigation, including ainicus briefs. DRS then disseminates

this policy in the form of technical assistance,

including letters responding to questions on policy issues; that is, in a format the general public

can understand more easily.2

Through Technical Assistance

Over the past several years, DRS has created

a strong technical assistance program that has

produced a substantial amount of material relating to title II. Much of DRS' policy guidance is

expressed through these technical assistance

materials, including its technical assistance

1 John Wodatch, Section Chief, Disability Rights Section

(DRS), Civil Rights Division (CRD), U.S. Department of

Justice (DOJ), interview in Washington, DC, Apr. 16, 1998,

pp. 3-4 (hereafter cited as Wodatch interview).

2 Ibid., pp. 3-4. The title II and title III technical assistance

manuals were initially published in 1992, before any enforcement actions. Other technical assistance is issued in

response to inquiries received from Congress and members

of the public. John L. Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Isler, Assistant Staff Director, Office of

Civil Rights Evaluation (OCRE), U.S. Commission on Civil

Rights (USCCR), July 24, 1998, Comments of the U.S. Department of Justice, p. 1 (hereafter cited as DOJ Comments,

July 24, 1998).

37

manuals, its responses to inquiries from the

public, and a series of technical assistance

documents, many in question and answer format, that explain particular aspects of title II for

a general audience.

Shortly after the ADA went into effect, in

1992, DOJ published a technical assistance

manual for title II. This manual exemplifies

DRS' first policy guidance. The purpose of the

manual is to "present the ADA's requirements

for State and local governments in a format that

will be useful to the widest possible audience."3

The manual is divided into nine main subject

headings that include qualified individuals with

disabilities, title II general and administrative

requirements, program accessibility, and new

construction and alterations of buildings and

facilities. Originally, DRS planned to update the

Title II Technical Assistance Manual on a yearly

basis, but as courts began to give the manual

deference, DRS decided not to make changes to

the manual and risk losing this deference.4

DRS also develops policy through written responses to ADA questions from Congress and the

public at large. As of March 1998, DRS staff had

written more than 900 technical letters on the

ADA. DRS staff identify some technical letters to

serve' as "policy" letters because they address

emerging issues or provide new information on

3 DOJ, Title II Technical Assistance Manual (Washington,

DC: U.S. Government Printing Office, 1993).

4 Wodatch interview, p. 4.

47
existing issues.5 However, DRS staff now writes

many fewer letters than in the past, since it tries

to respond to questions more frequently by telephones

According to DRS staff, these letters are not

legally binding on DOJ. Although DRS has an

interest in providing consistent information, and

attorneys typically will follow analyses outlined

in previous letters, DRS must be able to change

policy as needed, whether due to evolving technology or to the fact that ADA cases must be

evaluated on a case-by-case basis. Thus, although policy letters are important for the reasons mentioned above, they do not have the

same legal authority as the statute, regulations,

and technical assistance manuals. To date,

courts have not deferred to policy letters to the

degree that they do to DOJ's title II regulations

and the technical assistance manuals.? However,

DRS policy letters are discussed in this chapter

to the extent that they illuminate DOJ policy on

specific ADA issues.

DRS also addresses policy issues through other

technical assistance materials such as question

and answer sheets, brochures, and booklets.

These materials, which address areas such as law

enforcement, health care, and child care, generally provide information about ADA requirements

in a reader-friendly style appropriate for individuals, businesses, and agencies. DRS has produced such documents in conjunction with other

agencies and Federal grant recipients.

Through Enforcement

DOJ also develops policy through its enforcement activities. Settlement agreements,

5 Philip Breen, Special Legal Counsel, DRS, CRD, DOJ,

interview in Washington, DC, Apr. 15, 1998, pp. 2-3

(hereafter cited as Breen interview). The letters referred to

throughout this report as "policy" letters are those that are

identified by the Civil Rights Division's Freedom of Information Act (FOIA) office as "core letters." They represent the

letters in which a question was addressed for the first time.

The letters referred to in this report as "technical" letters

are those that are not "core" or "policy" letters. None of

these letters represents a binding legal interpretation of the

ADA. See John L. Wodatch, Chief, DRS, CRD, DOJ, letter to

Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR,

July 17, 1998, Comments of the U.S. Department of Justice,

p. 2 (hereafter cited as DOJ Comments, July 17, 1998).

Wodatch interview, p. 4.

7 Breen interview, p. 3.

38

letters of finding and arnicus curiae and other

briefs submitted in title II litigation all represent

statements of DOJ policy.8 According to DRS

staff, it has won favorable rulings in most cases

it has litigated under title II. DRS litigation has

brought about positive changes in many areas:

clarifying when curb cuts are required, ending

unnecessary segregation of persons in institutions, ensuring accessibility to anonymous voting

for persons with mobility and sight impairments,

and eliminating improper mental health inquiries in professional licensing procedures.9

In deciding in which cases DRS will file amicus

briefs, staff considers the following criteria:

whether the case is on appeal because a lower

court ruled unfavorably, whether jurisdiction issues are involved, whether there is a substantial

violation of the law, and whether the case will

make a significant impact or statement.10 In deciding whether to intervene in a case, DRS staff

consider whether the case is one DRS would have

brought on its own initiative, since intervention in

cases requires the same degree of resource commitment as other litigation. DRS staff consider

whether a particular case is solid and the plaintiffs rights have been violated." Decisions to litigate also take into account resource considerations.12 DRS staff has indicated that they try to

8 See John L. Wodatch, Director, DRS (formerly the Office

on the Americans with Disabilities Act), CRD, DOJ, letter to

James C. Hanna, Director, Department of Housing and

Community Development, Crownsville, MD, February 1992,

re: Accessibility, reprinted in 3 Nat'l Disability L. Rep. (LRP)

202 (hereafter cited as Hanna letter); John L. Wodatch,

Director, DRS (formerly the Office on the Americans with

Disabilities Act), CRD, DOJ, letter to Marty Keene, President, Able Handicapped Industries, Inc., Shelburne, VT, no

date, re: Accessibility, reprinted in 5 Nat'l Disability L. Rep.

(LRP) ¶ 193 (hereafter cited as Keene letter); Deval L. Patrick, Assistant Attorney General, CRD, DOJ, letter to Mark

Hatfield, U.S. Senate, Washington, DC, May 16, 1995, re:

Accessibility, reprinted in 8 Nat'l Disability L. Rep. (LRP)

33 (hereafter cited as Hatfield letter); James P. Turner,

Acting Assistant Attorney General, CRD, DOJ, Policy letter

to Harris Wofford, -U.S. Senate, Washington, DC, Mar. 15,

1994 re: Accessibility, reprinted in 6 Nat'l Disability L. Rep.

(LRP) ¶ 26 (hereafter cited as Wofford Policy letter).

9 Breen interview, p. 4.

19 Ibid.

II Ibid.

12 John Wodatch, Section Chief, DRS, CRD, DOJ, letter to

Frederick D. Isler, Assistant Staff Director, OCRE, USCCR,

Mar. 19, 1998 (hereafter cited as Wodatch letter, Mar. 19,

1998), enclosure, "Preliminary Information Request for the

48
litigate a mix of cases, including those that primarily will help individuals and those that address a pattern or practice of discrimination.13 It

is also important that the private attorneys litigating the case want DRS to join as a colitigant

through intervention. According to the Special

Legal Counsel, in cases involving a constitutional

question, the courts are required to notify DOJ

and to permit DOJ to intervene.14

Public Participation

DRS staff has acknowledged that the development of policy guidance through technical assistance and enforcement activities does not provide an opportunity for disability advocacy

groups and other stakeholders to participate in

policy development. If DRS drafted and published formal policy guidance documents (similar

to those produced by the U.S. Equal Employment Opportunity Commission), the public could

offer comment. However, DRS is primarily complaint responsive, partly because titles II and III

cover a broad range of areas.15 Also, DRS' work

is much more centralized than that of EEOC.

One DRS staff member stated that DRS does not

need to issue formalized policy guidance similar

to the guidance EEOC issues to guide its staff

located around the country because the regulations provide sufficient guidance and all DRS

staff are located in one office.16

Advocacy groups contend they have more access to and act in an informal advisory capacity

to EEOC. Each of the three most recent Assistant Attorneys General for Civil Rights has met

with advocacy groups, but such meetings do not

occur at regular intervals.'' A representative

from one disability advocacy organization commented that policy guidance would be helpful in

Disability Rights Section, Subject: Complaints Processing,

Response to Question No. 2," p. 1.

13 Staff, DSR, CRD, DOJ, interview in Washington, DC,

Nov. 6, 1997, p. 3 (hereafter cited as DRS Staff November

1997 interview).

14 Breen interview, p. 4.

19 Wodatch interview, p. 4.

19 L. Irene Bowen, Deputy Chief, DRS, CRD, DOJ, interview

in Washington, DC, Apr. 16, 1998, p. 3; DOJ Comments,

July 24, 1998, p. 1.

17 Wodatch interview, p. 4.

39

explaining ADA requirements to lay persons.18

He also noted that courts are not as likely to defer to informal policy guidance as to the law.19

Furthermore, several disability rights advocates have questioned the efficacy of DRS' ADA

litigation program. For instance, advocates have

stated that the litigation activities of the Disability Rights Section do not adequately respond

to issues faced by persons with disabilities such

as insurance concerns.20 To remedy this, DRS

should provide an opportunity for public input

regarding both the resources DRS dedicates to

litigation and the issues it litigates.21 One disability advocate recommends that the Department of Justice establish a formal advisory

board representative of persons with disabilities

to decide collectively with DRS staff which cases

to litigate.22

Another advocate has noted that DRS has not

taken an active role, as litigants or ainicus, in

cases involving mental illness. She said that she

could think of only one case where DOJ had filed

an amicus brief on behalf of an ADA claimant

with a mental disability, and she noted that it

IS Lawrence Berliner, General Counsel, Connecticut Office of

Protection and Advocacy for Persons with Disabilities, letter to

Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR,

Apr. 20, 1998, p. 2 (hereafter cited as Berliner letter).

19 Ibid. Informal policy guidance explains the law; however,

it is not an independent source of legal authority. DOJ

Comments, July 24, 1998, p. 1.

20 Berliner letter, p. 3; Chai Feldblum, Professor of Law,

Georgetown University Law Center, interview in Washington, DC, Feb. 2. 1998, p. 7.

21 Berliner letter, p. 3.

22 Paul G. Hearne, President, The Dole Foundation, interview in Washington, DC, Feb. 5, 1998, p. 2. The Civil Rights

Division recognizes members of the disability community as

ADA "stakeholders." Therefore, DRS is always willing to

meet with representatives of the disability community to

hear their concerns. However, as a Federal agency, DOJ is

precluded from seeking policy advice from representatives of

only one point of view. Any DOJ-initiated effort to seek assistance in developing policy would be subject to the requirements of the Federal Advisory Committee Act (FACA)

which governs the establishment or utilization of nonFederal entities as policy advisors. DOJ Comments, July 24,

1998, p. 2. The FACA requires any advisory body established by the Federal Government to have a "balanced" representation of affected interests. See 5 U.S.C. app. 2 § 5(b)(2)

(1994). In addition, the power to take action on any matters

discussed by an advisory committee is reserved solely for the

executive agency. DOJ Comments, July 24, 1998, p. 1. See 5

U.S.0 app. 2 §§ 2(b)(6); 9(b)(1994).

4 9
took a long time to be done.23 She also indicated

that DOJ has been far less active in addressing

issues relating to individuals with mental disabilities under title II of the ADA than the Equal

Employment Opportunity Commission has been

in addressing comparable issues under title I of

the ADA.24 DOJ, however, did provide funding to

a mental health advocacy center for a report on

title II of the ADA and persons with mental disabilities. With this funding, the center conducted

an analysis of benefits offices in South Carolina

to evaluate how accessible these offices were to

persons with mental disabilities. According to

the advocacy center, the project resulted in significant change to the South Carolina disability

benefits system.25

Title II Compliance Requirements

Administrative Requirements

In 1991, DOJ published regulations that specify administrative procedures that public entities

must follow to comply with title II, subpart A, of

the ADA. These administrative requirements include providing notice to the public to ensure persons with disabilities are aware of their rights,

conducting a self-evaluation of current policies

and practices, establishing transition plans to

comply with the ADA, and establishing ADA contact persons and grievance procedures.

Notice

The regulations require public entities to

make available to all interested persons information about the requirements of the ADA and

the regulations.26 The methods for making such

information available are to be determined by

the heads of public entities.27

23 Mary Giliberti, Attorney, Bazelon Center for Mental

Health Law, interview in Washington, DC, Dec. 16, 1997, p.

6 (hereafter cited as Giliberti interview). 24 Ibid., p. 6. DRS stated that DOJ has asked the Bazelon

Center for Mental Health Law to refer any potential complaints concerning mental disability to DOJ, but to date it

has not received any such complaints. DOJ Comments, July

24, 1998, p. 2. 25 Giliberti interview, p. 7. 26 28 C.F.R. § 35.106 (1997). 27 Id. For title II purposes, a public entity is defined as any

State or local government; any department, agency, special

purpose district, or other instrumentality of a State or

States or local government. Id. § 35.103 (1997).

Self-Evaluation

The regulations required all public entities to

conduct self-evaluations of their policies and practices to identify any changes that should be made

to comply with title II of the ADA.28 Such evaluations were to be completed within 1 year of the

effective date of the regulations.29 Public entities

that previously conducted self-evaluations required under section 504 of the Rehabilitation Act

of 1973 were required to evaluate only those policies and practices not covered by section 504.30 All

public entities had to allow submission of public

comments during the evaluation process,31 and

public entities with 50 or more employees had to

keep and "make available for public inspection: (1)

a list of the interested persons consulted; (2) a

description of areas examined and any problems

identified; and (3) a description of any modifications made."32

Information submitted to the Commission

from one advocacy group, however, indicates

there are communities that have not complied

with the ADA requirement to complete a selfevaluation of their programs and policies. According to the Paralyzed Veterans of America, the

city of Princeton, Indiana had not conducted a

self-evaluation as of late May 1998, more than 2'A

years later than the ADA regulation states the

self-evaluation should have been completed.33

Transition Plans

The regulations required public entities with

50 or more employees to develop transition plans

for any structural changes necessary to achieve

program access34 and to make a copy of the plan

available for public review.35 A public entity with

authority over streets and walkways had to include in its transition plan a schedule for providing curb cuts or ramps, especially when

28 Id. § 35.105 (a). 28 Id. 30 Id. § 35.105 (d). 31 Id. § 35.105 (b). 32 Id. § 35.105 (c)

33 Susan Prokop, Associate Advocacy Director, Paralyzed

Veterans of America, letter to Nadja Zalokar, Director,

Americans with Disabilities Act Project, USCCR, May 26,

1998, p. 2 (hereafter cited as Prokop letter). 34 Id. § 35.150 (d)(1).

35 Id.

40

50
walkways serve State and local government offices, facilities, and employers.36 Transition

plans had to contain at least the following information:

1. the name of the official responsible for implementing the plan,

2. a list of the physical obstacles that limit

participation in programs and services by

persons with disabilities,

3. a detailed description of the methods the

public entity will use to make programs

and services accessible, and

4. a schedule of the steps the entity will take

to complete the transition.37

Similar to the requirements for self-evaluations,

public entities that previously developed transition plans required under section 504 of the Rehabilitation Act of 1973 needed to evaluate only

those policies and practices not covered in the

section 504 transition plan."

According to DRS staff, DRS spent a lot of effort to make sure State and local governments

did self-evaluations and transition plans, particularly during the first 2 years when the Section set up its enforcement mechanism." However, a representative of one regional disability

business and technical assistance center

(DBTAC) implied DOJ has not sufficiently addressed this area by suggesting that DOJ

"should prepare examples of good transition and

self-evaluation plans and make these examples

available at nominal cost."40

In one privately litigated case, a person who

uses a wheelchair alleged that the Johnson City,

Tennessee, government violated title II and section 504 by failing to implement a transition plan,

36 Id. § 35.150 (d)(2).

37 Id. § 35.150 (d)(3).

313 Id. § 35.150 (d)(4).

39 Daniel Searing, Supervisory Attorney for Office Administration, DRS, CRD, DOJ, interview in Washington, DC,

Apr. 13, 1998, p. 1.

49 Responses by National Institute on Disability and Rehabilitation Research Americans with Disabilities Act Technical Assistance Program grantees related to DOJ/EEOC Enforcement, Jan. 6, 1998, provided to the Commission by

David Esquith, National Institute on Disability and Rehabilitation Research (OCRE files), p. 5 (hereafter cited as

NIDRR, ADA Project Directors' responses). DRS stated that

it has asked the DBTACs to provide examples of such plans,

but to date it has not received any examples. DOJ Comments, July 24, 1998, p. 2.

41

failing to conduct a timely self-evaluation, and

failing to implement changes that were required

to enable access:11 Johnson City did not develop a

transition plan until 1994, almost 2 years after

the deadline stated in the regulations. In addition,

although structural changes in existing buildings

were to be completed no later than January 25,

1996, as of the date of the trial (Oct. 10, 1995),

some changes were not complete.42 Although the

court determined the city's transition plan was

untimely and inadequate, and that some of the

facilities' changes were incomplete, it nonetheless

ruled in favor of the city and its manager. The

court held that the plaintiff was not excluded from

participation in or denied the benefits of the public entity's services, programs, or activities.43 The

court also ruled that although the transition plan

was inadequate in many respects, the transition

plan would not address any and all of the obstacles that the plaintiff must deal with on a day-today basis, because such a plan would be restricted

to public facilities where structural changes are

undertaken.44

ADA Contact Persons and Grievance Procedures

The title II regulations require public entities

employing 50 or more persons to designate an

employee or employees to coordinate and investigate the agency's ADA compliance efforts.45

The regulations also obligate public entities with

50 or more employees to establish and publish

grievance procedures for complaints alleging

failure to comply with the ADA.46 However,

complainants are not required to exhaust these

procedures before they file a complaint with the

Federal Government, through DOJ or the designated agencies.47

Disability rights advocates have indicated to

the Commission that many State and local gov41 Miller v. City of Johnson, Tennessee, No. 2:94CV-246,

1996 U.S. Dist. LEXIS 7360, at *1*2 (E.D. Tenn 1996).

42 Id. at *7. The remaining intersections without curb ramps

were scheduled to be modified between October 1995 and

October 1996. Id. at *16.

43 Id. at *19.

44 Id. at *18.

49 28 C.F.R. § 35.107(a) (1997).

46 Id. § 35.107(b).

47 Id. pt. 35, app. A § 35.170 (1997).
ernments are not complying with the ADA.48 For

example, the executive director of one State's

disability law center (and protection and advocacy center) noted that courts in her State have

not established grievance procedures and do not

provide sign language interpreters, a violation of

the ADA.49 Repeated calls to major State agencies revealed that ADA coordinators still had not

been clearly designated by those agencies.59 Another advocate pointed out that State and local

governments have not completed selfevaluations as required under the ADA.51 Both

of these advocates stated that DOJ should be

more aggressive in enforcing title II.52

Disability rights organizations have suggested several ways DOJ could improve its enforcement of title II administrative requirements. For example, one organization's representative proposed that DOJ promote uniform

policies and procedures for State courts by participating more actively in judicial conferences

conducted by State supreme courts.53 To ensure

that more public entities designate ADA coordinators, groups suggest that local entities be required to report annually the names of their

ADA coordinators to the State ADA coordinator

and that DOJ determine the existence of ADA

coordinators at all levels of government, perhaps

48 See, e.g., Amy Maes, Director, Client Assistance Program,

Michigan Protection and Advocacy Service, letter to Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, Apr.

30, 1998, enclosure, p. 1 ("Our agency did a survey of Michigan's courthouses [to assess] whether or not they were physically and programmatically accessible. . . . What we

found generally is that local municipalities are still in need

of education about the requirements of the ADA. Many public entities never began or completed the self-evaluation

plan or transition plan for addressing programmatic and

physical access issues. . . .[W]e have had approximately 60

cases dealing with services offered by public entities.")

49 Kayla Bower, Executive Director, Oklahoma Disability

Law Center, letter to Frederick D. Is ler, Assistant Staff

Director, OCRE, USCCR, Apr. 6, 1998, enclosure, p. 2

(hereafter cited as Bower letter).

59 Ibid., enclosure, p. 3.

51 See Prokop letter, p. 2.

52 Kayla Bower, Executive Director, Oklahoma Disability

Law Center, telephone interview, May 1, 1998, pp. 1-2

(hereafter cited as Bower interview); Prokop letter, p. 2. See

also David Eichenauer, Access to Independence and Mobility, fax to Nadja Zalokar, Director, Americans with Disabilities Act Project, USCCR, June 4, 1998, p. 2.

53 Bower letter, p. 4.

42

through collaboration with the Protection and

Advocacy System.54 Similarly, another advocate

recommends that DOJ verify whether State and

local agencies had completed self-evaluations

and transition plans.55 Finally, disability advocates also suggest that DOJ expand its litigation

program to adequately respond to issues affecting persons with disabilities.56

General Nondiscrimination

The ADA title II regulations provide for general nondiscrimination against individuals with

disabilities by State and local governments in

the areas of program accessibility, communication, and employment.57 Questions regarding the

applicability or coverage of title II arise in a

number of contexts, since the scope of title II

extends to entities such as law enforcement and

emergency services, courthouses and other government buildings, public health care and State

licensing activities. DOJ's enforcement and policy development activities in these areas are examined below.

The ADA and its implementing regulations

specify that title II, subtitle A, prohibits all public entities from discriminating against qualified

individuals on the basis of disability in the provision of services, programs or activities.58 Public

entities include State and local governments,

and their departments, agencies, special purpose districts or other instrumentalities.59

"Disability" is defined by the ADA and DOJ's

implementing regulations as a "physical or mental impairment that substantially limits one or

more major life activities." Physical or mental

impairment means: (a) 'a physiological disorder

that affects the cardiovascular, digestive, neurological, musculoskeletal, and other systems; or

(b) a mental or psychological disorder, such as

54 Ibid. NIDRR, ADA Project Directors' responses, p. 5.

55 Kathy Ertola, Assistant ADA Coordinator, California Department of Social Services, letter to Nadja Zalokar, Director, Americans with Disabilities Act Project, USCCR, May

26, 1998, p. 4.

56 Berliner letter, p. 3; Bower interview, pp. 1-2; Michelle

Martin, Staff Services Analyst, California Department of

Rehabilitation, letter to Nadja Zalokar, Director, Americans

with Disabilities Act Project, USCCR, May 11, 1998, p. 12.

57 28 C.F.R. §§ 35.140.164 (1997).

58 42 U.S.C. § 12132 (1994); 35 C.F.R. § 35.130 (1997).

59 Id. § 12131 (1994); 28 C.F.R. § 35.104 (1997).

52
mental retardation, organic brain syndrome,

specific learning disability, emotional or mental

illness, and other disorders.69 Major life activities include functions such as seeing, hearing,

speaking, breathing, walking, learning, working,

and caring for one's self. Individuals with a disability do not include those who are using illegal

drugs. A "qualified individual with a disability"

refers to an individual with a disability who,

with or without the provision of auxiliary aids,

removal of architectural, communication, or

transportation barriers, or "reasonable" modifications to rules, policies, and practices meets the

essential requirements for the receipt of services

or participation in programs or activities provided by a public entity.61

Beyond this general nondiscrimination provision, the regulations address several concerns on

which title II and DRS' enforcement of the statute have an important impact. The regulation

contains general prohibitions on discrimination

and specific prohibitions on discrimination that

address three substantive areas: program accessibility, effective communication, and employment; and two procedural ones: compliance procedures and designation of enforcement agencies. Among the three substantive issue areas

DOJ has addressed in policy as well as in its title

II regulations, a number of important concerns

is associated with each.

For example, the provisions on program accessibility detail title II requirements that the

new or altered physical facilities of public entities be architecturally designed or remodeled so

that the facilities are "readily accessible to and

usable by individuals with disabilities."62 For

facilities constructed before the ADA, public entities are required to make each "service, program, or activity. . . readily accessible to and usable by individuals with disabilities." This does

not necessarily require that each facility be accessible to individuals with disabilities.63 With

respect to communications, the regulations require that communication between the public

entity and people with visual or hearing disabili60 See id. § 12102(2); 28 C.F.R. § 35.104 (1997).

6.1 28 C.F.R. § 35.104 (1997).

62 Id. § 35.150.

63 Id.

43

ties be "as effective" as communications with

people without disabilities.64 Finally, under the

regulatory provisions on employment, DOJ requires public entities to meet the standards set

forth in title I of the act to ensure against discrimination on the basis of disability in public

employment.65 Among these three areas, title II

seeks to ensure nondiscrimination for people

with disabilities in virtually every facet of the

services and facilities public entities provide. As

such, these three areas and the emerging issues

associated with them have become the main focus of DRS' efforts to carry out its mission on

behalf of people with disabilities.

Program Accessibility

Under title II, a public entity may not deny

the benefits of its programs, activities, and services to qualified individuals with disabilities because the entity's facilities are physically inaccessible to individuals with disabilities.66 A public entity is required to operate each service,

program, or activity it provides so that, when

viewed in its entirety, the service, program, or

activity is readily accessible to and usable by

individuals with disabilities.67 No provision

waives the obligation of smaller public entities to

provide program access.68 For example, in response to an inquiry of whether a county with

few persons with disabilities is exempt from the

ADA, DOJ responded that a small number of

residents with disabilities does not limit the obligation to provide program access.69 However,

for facilities built before the January 26, 1992,

effective date of the ADA, no public entity, regardless of its size, is required to take any action

that would result in a fundamental alteration of

64 Id. §§ 35.160.164.

65 Id. § 35.140.

66 28 C.F.R. § 35.149 (1997). See also Janet L. Blizard, Supervisory Attorney, DRS, CRD, DOJ, letter to unknown

individual, Mar. 29, 1993, re: Accessibility, reprinted in 5

Nat'l Disability L. Rep. (LRP) ¶ 485 (hereafter cited as Blizard Unknown letter); John L. Wodatch, Chief, DRS, CRD,

DOJ, letter to unnamed individual, Aug. 29, 1996, re: Accessibility, reprinted in 10 Nat'l Disability L. Rep. (LRP) ¶ 75

(hereafter cited as Wodatch Unknown #1 letter).

67 28 C.F.R. § 150 (a) (1997).

68 Wodatch Unknown #1 letter.

69 Ibid.
its program or in undue financial and administrative burdens."

General Requirements

If a public entity offers a program, service, or

activity in an existing building, it must not deny

the benefits of the program to persons with disabilities because its structural facilities are inaccessible.71 According to the regulations, a public

entity may comply through such means as redesign of equipment, reassignment of services to

accessible buildings, delivery of services at alternate accessible sites, alteration of existing

facilities and construction of new facilities, or

any other methods that result in making its

services, programs, or activities readily accessible to and usable by individuals with disabilities.72 For example, DOJ has stated that title II

requires State and local governments to ensure

program access to State lottery programs. The

State must ensure that the lottery program, but

not necessarily each individual facility that sells

lottery tickets, is physically accessible to persons

with disabilities. Under the concept of program

access, structural changes to facilities are only

required when there is no available alternative

(such as curbside service).73

For another example, State and local government fire stations must make their programs accessible to the general public. This may require

making physical changes to existing buildings,

acquiring or redesigning equipment, reassigning

services to accessible buildings, and/or delivering

services at alternate accessible sites.74 Tours can

be provided in existing facilities that are accessible, or audiovisual displays can be held in an accessible location on the ground floor.75 Fire stations should be constructed to comply with Uniform Federal Accessibility Standards (UFAS) or

7° 28 C.F.R. § 35.150 (a)(3) (1997). 71 Id. § 35.150 (1997); Blizard Unknown letter. 72 Id. § 35.150(b)(1) (1997). 73 Deval L. Patrick, Assistant Attorney General, CRD, DOJ,

Policy letter to Mark 0. Hatfield, U.S. Senate, no date, re:

Accessibility (hereafter cited as Hatfield Policy letter). 74 L. Irene Bowen, Deputy Chief, DRS (formerly the Office

on the Americans with Disabilities Act), CRD, DOJ, letter to

Luther Field, Batt. Chief/Critical Issues, Austin, TX, Mar. 2,

1992, re: Accessibility, reprinted in Nat'l Disability L. Rep.

(LRP) ¶ 409. 75 Ibid.

44

the ADA Standards for Accessible Design. Further, kitchens, dormitories, libraries, laundry

rooms, meeting rooms, etc., are required to be accessible, particularly when such facilities are used

by nonfirefighters.76

Program accessibility in public entities covers

more than the residents or members of the entity. Although limiting participation in specified

local government programs to local residents

"does not appear" to be prohibited by title II, a

local government might violate the ADA if it imposed such a limitation to avoid serving nonresidents with disabilities.77 DOJ has stated that

designating some programs as being open to the

general public and others as being open only to

local residents does not appear to violate title II.

However, the ADA may be violated if most facilities of a recreation center (e.g., picnic areas, tennis courts, basketball courts) are open to the

general public, but use of the swimming pool is

limited to residents when it is known that there

are no mobility impaired residents and the jurisdiction does not want to provide pool services

for persons with disabilities.78

According to one DRS staff member, the biggest ADA technical assistance issue that DRS

faces under title II is that a lot of public entities

do not understand program accessibility, even

though the concept has existed since the enactment of section 504 of the Rehabilitation Act of

1973. Funding for training was provided to localities under section 504, but when those funds

ended, many small towns no longer kept up with

504 responsibilities. Since that time, many of the

people in small towns who worked on section 504

issues have moved on, so there is a lack of

knowledge and understanding. Also, in smaller

towns, many title II entities do not have enough

76 John L. Wodatch, Chief, DRS (formerly the Public Access

Section), CRD, DOJ, Policy letter to Craig Nishimura,

Building Department, City and County of Honolulu, Honolulu, HI, re: Accessibility (hereafter cited as Nishimura Policy letter). For example, other employees, such as those

responsible for cooking, cleaning, laundry, maintenance, and

clerical tasks, must have access to areas and cannot be excluded or denied access because of a disability. 77 L. Irene Bowen, Deputy Chief, DRS (formerly the Office

on the Americans with Disabilities Act), CRD, DOJ, letter to

Tria D. Vikesland, Adaptive Recreation Specialist, Eden

Prairie, MN, Feb. 4, 1992, re: Accessibility, reprinted in 4

Nat'l Disability L. Rep. (LRP) 11 319. 75 Ibid.

54
staff to work on these issues sufficiently to really

learn and understand them. The ADA is designed to foster independence, but often officials

in small towns instead try to "help" persons with

disabilities. Sometimes officials (in any size local

government) also try to excuse themselves from

complying with the ADA by arguing there are no

persons with disabilities in their community.79

To try to address this lack of knowledge about

program accessibility, DRS has developed several grants for State, county, and local government officials to learn how to implement the requirements of the ADA in their own communities. DRS also is going to produce something for

small towns that is similar to the ADA guide for

small businesses, to help small towns become

aware of DRS and other resources.89 However, at

least one representative of a small town has

criticized the draft document as too legalistic to

be useful to small and rural governments. He

indicated that his organization had received a

grant to produce the document, but that DOJ

had rewritten sections of the document using

"language that only a lawyer could interpret."81

As stated above, title II does not require public entities to make architectural modifications

to buildings and other facilities that existed before the ADA became law if program accessibility can be achieved in other ways. However, the

title II regulations do require that new construction and alterations to existing facilities be done

in such manner that the facilities are readily

accessible to and usable by individuals with disabilities. The regulations provide that compliance with at least one of two sets of accessibility

guidelines with specific architectural standards

is deemed to comply with the accessibility requirements for new construction and alterations.

These requirements are discussed below.

79 Jim Bostrom, Architect, DRS, DOJ, interview in Washington, DC, Apr. 16, 1998, p. 2 (hereafter cited as Bostrom interview).

89 Ibid.

81 Hamilton Brown, Director of Training and Technical Assistance, National Association of Towns and Townships,

telephone interview, May 6, 1998, p. 4.

45

Architectural Considerations

Existing Facilities

Removal of architectural barriers is one

method of providing access to programs in existing facilities. Other methods are permitted if

they ensure that programs are available to individuals with disabilities. The title II regulations

do not require a public entity to make physical

alterations to existing facilities if other means of

providing program accessibility are effective or if

it demonstrates that the cost of making facilities

accessible would result in undue financial and

administrative burdens.82 In lieu of structural or

physical alterations, program access can be

achieved by relocating services from inaccessible

buildings to accessible ones, by assigning aides

to program beneficiaries, by delivering services

to alternate accessible sites, or by moving the

service to the first floor so the service is accessible to individuals who are unable to climb

steps.83 Only when there is no other way to provide access must a State or local government

undertake structural modifications to its existing buildings.84 For example, although a school

district is not necessarily required to make every

existing building accessible, it may relocate vari82 28 C.F.R. § 35.150(a)(3) (1997). The head of a public

entity or his or her designee must file a written statement

of the reasons for concluding that such undue burdens

would result. The public entity is still required to "take

any other action that would result in . . . such burdens but

would nevertheless ensure that individuals with disabilities receive the benefits or services provided by the public

entity." Id. See also Merrily A. Friedlander, Acting Chief,

Coordination and Review Section, CRD, DOJ, Policy letter

to Robert W. Nakoneczny, Superintendent of Schools,

Boyne City Public Schools, Boyne City, MI, no date, re:

Accessibility (hereafter cited as Nakoneczny Policy letter).

83 Wodatch Unknown #1 letter; James P. Turner, Acting

Assistant Attorney General, CRD, DOJ, Policy letter to

Don Young, U.S. House of Representatives, Washington,

DC, May 26, 1993, re: Accessibility. In choosing methods of

ensuring program access, a public entity is required "to

give priority to methods that offer services, programs, and

activities to qualified individuals with disabilities in the

most integrated setting appropriate." 28 C.F.R. §

35.150(b)(1) (1997).

84 28 C.F.R. pt 35, app. A § 35.150 ("[s]tructural changes in

existing facilities are required only when there is no other

feasible way to make the public entity's program accessible"); Deval L. Patrick, Assistant Attorney General, CRD,

DOJ, letter to Unknown respondent, Jan. 29, 1995, re:

Accessibility, reprinted in 9 Nat'l Disability L. Rep. (LRP)

¶ 84 (hereafter cited as Patrick Unknown letter).

rJ.J
ous services or programs if necessary to provide

program accessibility.85 If a school determined

that making alterations to a gymnasium would

pose undue financial burdens, the ADA does not

require that the gym be closed, only that another

location be used so that individuals with disabilities receive the same benefits and services as

other members of the community.86 Similarly,

title II's program accessibility regulation does

not require that every area of an existing public

building be made structurally accessible.87

The title II regulations do not require a public

entity to make structural changes to existing

facilities when the entity can achieve compliance

with the ADA by employing other cost-effective

methods.88 For example, in response to an inquiry about whether a county government must

microfilm or computerize its records to accommodate individuals with disabilities, DOJ wrote

that staff assistance (such as lifting and handling record books) could eliminate costly modifications and that additional measures or methods would not be required to avoid discrimination.89 Thus, a public entity may use methods to

accommodate individuals with disabilities that

do not require additional expense, regardless if

those methods are less efficient than a more

costly alternative, as long as they achieve effective compliance.

Through a policy letter, DRS addressed

whether public entities have ADA responsibilities in existing buildings. A person wrote that

he" believed public entities in existing buildings

85 James P. Turner, Acting Assistant Attorney General,

CRD, DOJ, Policy letter to Daniel Patrick Moynihan, U.S.

Senate, Washington, DC, Jan. 6, 1994, re: Accessibility

(hereafter cited as Moynihan Policy letter); Nakoneczny

Policy letter.

ss Nakoneczny Policy letter.

87 John R. Dunne, Assistant Attorney General, CRD, DOJ,

letter to Doug Bereuter, U.S. House of Representatives,

Washington, DC, re: Accessibility, reprinted in 4 Nat'l Disability L. Rep. (LRP) ¶ 385 (hereafter cited as Bereuter # 1

letter). It is required however, that each service program, or

activity conducted by a public entity, when viewed in its

entirety, be readily accessible and usable by individuals with

disabilities. 28 C.F.R. § 35.150(a) (1997).

88 28 C.F.R. § 35.150(b)(1) (1997).

89 Mc Nett letter.

99 John R. Dunne, Assistant Attorney General, CRD, DOJ,

letter to Lane Evans, U.S. House of Representatives, Galesburg, IL, Nov. 14, 1993, re: Accessibility, reprinted in 4 Nat'l

do not have ADA responsibilities unless such

buildings undergo "substantial remodeling."91 In

its guidance to the writer, the Department responded that specific title II provisions affect

existing public facilities,92 and pointed out when

they apply to altered facilities. The act and the

implementing regulations do not require that

each existing facility be accessible. However, alterations affecting usability should be done so as

to make the altered area accessible to the maximum extent feasible."

For example, with respect to existing facilities, title II of the ADA does not include any specific requirements for the number of restrooms

that must be made accessible to persons with

disabilities." In a letter, DOJ addressed the issue of grab bars in toilet stalls. The Department

wrote that a State's building code may provide

less accessibility than the ADA standards. However, the effort to make facilities accessible, in

this case the State configuration for grab bars,

can differ from the standards if it provides access and usability substantially equivalent to the

configuration in the standards. In any ADA enforcement action, the covered entity would bear

the burden of proving the equivalency of any

alternate design.95

Leased Facilities

Under title II, a State or local agency is not

required to make each existing building that it

leases from a private landlord accessible, but

State or local programs or activities that are

conducted within the buildings are subject to the

program access requirement.96 In addition, if the

Disabilities L. Rep. (LRP) ¶ 265 (hereafter cited as Evans

letter).

91 Ibid.

92 28 C.F.R. § 35.150 (1997).

93 Id. § 35.151(b) (1997); see also Evans letter.

94 James P. Turner, Acting Assistant Attorney General,

CRD, DOJ, letter to Wally Herger, U.S. House of Representatives, Washington, DC, Oct. 28, 1992, re: Accessibility,

reprinted in 5 Nat'l Disability L. Rep.(LRP) ¶ 285 (hereafter

cited as Herger letter).

95 John L. Wodatch, Chief, DRS (formerly the Public Access

Section), CRD, DOJ, Policy letter to Curt Wiehle, Accessibility Specialist, Minnesota State Council on Disability, St.

Paul, MN, May 4, 1994, re: Accessibility (hereafter cited as

Wiehle Policy letter).

96 28 C.F.R. pt. 35, app. A § 35.151 (1997). To the extent that

leased buildings are newly constructed or altered, they must

46

56
State's landlord is not "agreeable" to making the

necessary changes, the State is still responsible

for complying with title II. Further, if the landlord refuses to pay for or allow the public entity

to make the modifications needed for compliance, the public entity retains an independent

obligation to provide program access by some

other method.97

Historic Facilities

The ADA, 42 U.S.C. § 12204(c), and the title

II regulations apply to historic facilities and require accessibility in existing facilities, although

a public entity is not required to "take any action

that would threaten or destroy the historic significance of an historic property."98 Therefore,

physical modifications to historic buildings are

not required if the program can be made accessible through other means. The regulations also

state that public entities involved in historic

preservation programs must first try to provide

physical access for individuals with disabilities.

However, if a physical alteration to a historical

facility would "threaten or destroy the historic

significance" of the facility, would cause a fundamental alteration in the facility, or would

cause undue financial or administrative burdens, an entity may attempt to provide program

access through other means. These include

audiovisual presentations of inaccessible portions of a facility and assigning guides to individuals with disabilities or adopting other innovative methods.99

Alterations to qualified historic facilities

must comply with the UFAS or ADA Standards

also meet the construction and alteration requirements of §

35.151. Public entities are also "encouraged to look for the

most accessible space to lease and to attempt to comply with

[the] minimum Federal requirements" for leased buildings

contained in the Minimum Guidelines and Requirements for

Accessible Design published by the Architectural and

Transportation Barriers Compliance Board at 36 C.F.R. §

1190.34, even though they apply only to Federal Government leases. Id.

97 Stewart B. Oneglia, Chief, Coordination and Review Section, CRD, DOJ, Policy letter to Barry M. Vuletich, Manager

of Consumer Affairs, Division of Rehabilitation Services,

Little Rock, AK, Jan. 27, 1994, re: Accessibility. Also reprinted in 5 Nat'l Disability L. Rep. (LRP) ¶ 325 (hereafter

cited as Vuletich Policy letter).

98 28 C.F.R. § 35.150 (a)(2) (1997).

99 Id. § 35.150 (b)(2).

47

for Accessible Design to the maximum extent

feasible. If it is not feasible to provide physical

access that will not threaten or destroy the historic significance of the building or facility, then

alternate methods of access shall be provided.109

Educational Facilities

Although the Department of Justice has written policy letters in response to inquiries involving schools, complaints alleging violations of

title II in public schools are handled primarily by

the U.S. Department of Education. Private

schools are subject to title III of the ADA; public

schools are subject to title II. The title II program accessibility requirement became effective

for public schools on January 26, 1992. Districts

with at least 50 employees were to have developed a transition plan by July 26, 1992, and districts must comply with requirements relating to

self-evaluations.'91 Public schools are still held

responsible for meeting their obligations, even if

a program or activity is held at a private or religious schoo1.192 To illustrate, if a public school

competes against a private school that does not

have accessible facilities and refuses to make the

facilities accessible, the public school, in certain

circumstances, may not be allowed to participate

in the interscholastic program.'"

The concept of program accessibility applies

to public facilities even if the ADA design standards do not specifically address all of the elements of the facility. For example, while there

are no specific design standards for school playgrounds, the regulation does include provisions

that may apply to equipment and establishes

requirements for an accessible route.'" In the

case of playgrounds, firm paths and surfacing

100 Id. § 35.151(d).

101 Id. §§ 35.150(c)(d), 35.105; John R. Dunne, Assistant

Attorney General, CRD, DOJ, letter to Doug Bereuter, U.S.

House of Representatives, August 21, 1992 (hereafter cited

as Bereuter #2 letter).

102 Bereuter #2 letter.

103 Ibid.

104 Stewart B. Oneglia, Chief, Coordination and Review Section, CRD, DOJ, Policy letter to unknown respondent, no

date, re: Accessibility (hereafter cited as Oneglia letter to

unknown respondent). Public entities can choose to design,

construct, or alter facilities either in accordance with the

ADAAG or the UFAS. This is deemed to comply with the

requirements of title II. 28 C.F.R. § 35.151(c) (1997)

5f,
should be provided to allow playground facilities

to be used by persons with limited mobility.105

Schools must be accessible not only to students,

but also to parents, visitors, and the general

public.106

If a public school has an inaccessible auditorium in an existing facility, it must make the

auditorium accessible or move the event to a location that is accessible.' °7 DOJ has determined

that in situations where a school has an inaccessible auditorium, the school district is required

to implement one of the two alternatives to be in

compliance. If making the auditorium accessible

would result in a fundamental change in the

events or would constitute an undue financial or

administrative burden, the school would be required to move the events to an accessible location.108

Many accessibility complaints fall under the

jurisdiction of the designated Federal agencies.

For example, DRS refers school building complaints to the Department of Education and

complaints dealing with public parks to the Department of Interior. However, the Department

of Education does not have architects on its staff

and it is so entrenched in section 504 compliance

issues that architectural facilities issues are not

a priority. One DRS architect said she is not

aware of any instances when the Department of

Education or any of the other designated agencies have consulted with DRS architects for advice or assistance regarding building accessibility complaints.'09

Courts

Existing State and local courthouses and

courtrooms also are covered by title II and are

subject to accessibility requirements. The applicable standard of accessibility is either the UFAS or

the ADAAG, and applies to jury boxes, witness

stands, judges' benches, clerks' stands, reporters'

105 Ibid. 106 Bereuter #1 letter. 107 Patrick Unknown letter. 108 Ibid. 102 Harland interview, p. 3. DRS notes that on several occasions the Department of Education has consulted with DRS

about the application of the ADA Standards for Accessible

Design to schools and has recently requested staff training on

architectural accessibility. DOJ Comments, July 24, 1998, p. 3.

stands, etc. DOJ has issued several policy letters

to provide guidance on the applicability of title II

to State and local courts. These letters clarify that

an accessible route to public areas must be provided.110 To be considered accessible, a jury box or

witness stand must be reachable by an accessible

route, must contain at least one accessible wheelchair space (a removable seat may be installed in

the space when it is not needed to accommodate a

wheelchair), and must be served by an unobstructed turning space. Any fixed counters or operating mechanisms in a jury box or witness

stand must be accessible.111

The ADAAG requires surfaces along accessible routes to be stable, firm, and slip resistant.

There are no requirements on slip resistance in

these areas.112 If the accessible juror or witness

seating is not raised, an accessible route consists

simply of a level route with adequate width and

head room. If the accessible seating is raised, a

ramp that complies with the UFAS must be pro:

vided.113 Although the requirement that some

juror and witness seats be level or ramped may

alter traditional courtroom design, DOJ advised

that such alterations are necessary to ensure

that individuals with disabilities have the same

opportunities to participate fully in their communities that nondisabled individuals have, including opportunities for jury service and for

participation as witnesses in legal proceedings.114 Judges' benches and clerks' and reporters' stands must also be accessible, so as not to

pose obstacles to employment of individuals with

110 Deval L. Patrick, Assistant Attorney General, CRD, DOJ,

letter to Curt Weldon, U.S. House of Representatives, Upper

Darby, PA, Oct. 18, 1995, re: Accessibility, reprinted in 9

Nat'l Disability L. Rep. (LRP) 153 (hereafter cited as Weldon

letter); see also Deval L. Patrick, Assistant Attorney General, CRD, DOJ, Policy letter to The Honorable Rick Santorum, U.S. Senate, Philadelphia, PA, no date, re: Accessibility (hereafter cited as Santorum Policy letter).

111 Weldon letter; Santorum Policy letter. 112 28 C.F.R. pt. 36, app. A §§ 4.3.6 & 4.5.1. (1997); see also

John R. Dunne, Assistant Attorney General, CRD, DOJ,

letter to Ernest F. Hollings, U.S. Senate, Washington, DC,

re: Accessibility, reprinted in 4 Nat'l Disabilities L. Rep.

(LRP) ¶ 184. 113 See John L. Wodatch, Chief, DRS (formerly the Public

Access Section), CRD, DOJ, Policy letter to J. Keith Ausbrook, Counsel to the Municipal Castings, Fair Trade ,Council, Washington, DC, Aug. 30, 1994, re: Accessibility. 114 Weldon letter.

48

58
disabilities. In 1996, DOJ issued proposed standards for courtrooms that would require judges'

benches and clerks' stations to be either fully

accessible or adaptable, at the discretion of the

builder. An adaptable bench or station would be

designed to contain necessary maneuvering

clearances and other spaces so full accessibility

can easily be achieved when required. An adaptable judges' bench would not need a ramp if it

were designed so that a ramp or lift could be

easily installed at a later date.115

In spite of the guidance DOJ has provided regarding court accessibility, disability rights advocates have informed the Commission that they

continue to receive complaints about courts that

are not accessible to persons with disabilities.116

The Michigan Protection and Advocacy Service

(MPAS) attempted to assess ADA compliance in

all courts throughout the State of Michigan by

sending a survey that asked courts to identify

their ADA coordinators and submit copies of their

self-evaluations and transition plans. The low

number of responses received and the poor quality

of such responses led MPAS staff to conclude that

court personnel in Michigan need further education about the ADA and its requirements.117 A

Georgia disability organization wrote about a

"metropolitan courthouse which had inaccessible

restrooms among other improper features."118

Sidewalks, Curbs, and Ramps

The title II regulations also provide for accessible curbs, roads, ramps, and sidewalks. The

regulations state that "[n]ewly constructed or

altered streets, roads, and highways must contain curb ramps or other sloped areas at any intersection having curbs or other barriers to entry

"5 Ibid.

116 See Lawrence Berliner, General Counsel, Connecticut

Office of Protection and Advocacy for Persons with Disabilities, letter to Frederick D. Isler, Assistant Staff Director,

OCRE, USCCR, Apr. 20, 1998, enclosure, p. 4; David Eichenauer, Access to Independence and Mobility, fax to Nadja

Zalokar, Director, Americans with Disabilities Act Project,

USCCR, June 4, 1998, p. 3; Joyce R. Ringer, Executive Director, Georgia Advocacy Office, letter to Frederick D. Isler,

Assistant Staff Director, OCRE, USCCR, Apr. 1, 1998, p. 6.

117 Amy Maes, Director, Client Assistance Program, Michigan Protection and Advocacy Service, letter to Frederick D.

Isler, Assistant Staff Director, OCRE, USCCR, Apr. 30,

1998, enclosure, p. 2.

118 Ringer letter, enclosure, p. 4.

49

from a street-level pedestrian walkway."119 Further, "newly constructed or altered street level

pedestrian walkways must contain curb ramps

or other sloped areas at intersections to streets,

roads, or highways."120

The Department of Justice has provided a

substantial amount of guidance regarding sidewalk curbs and ramps through its policy letters.

For example, the Department has indicated the

ADA does not require installation of curb ramps

at every intersection. However, if a locality constructs a new street or alters an existing street

or intersection, it should provide accessible curb

ramps or ramps where elevated or curbed pedestrian walkways intersect with the new or altered

street or intersection.121 In some cases, cities

should install curb ramps to provide access to

existing pedestrian walkwayseven those that

are not being otherwise alteredto provide access to the "program" of using streets and walkways.122 Title II further requires that public entities maintain in operable working condition

those features, including sidewalks and streets,

that are required to be readily accessible to and

usable by individuals with disabilities.123

In 1993 the Department of Justice submitted

an amicus curiae brief to the Third Circuit Court

of-Appeals for a case involving the installation of

curb ramps. In Kinney v. Yerusalim, the Department of Justice argued the court should affirm a lower court decision that the Pennsylvania Department of Transportation's resurfacing

of a city street constitutes an "alteration" within

the meaning of the title II regulations, thus requiring the public entity make the altered portion of the road readily accessible to individuals

with disabilities by installing curb ramps.124 The

Department also argued the court should affirm

119 28 C.F.R. § 35.151(e)(1)(2).

120 Id. § 35.151(e)(2).

121 Id. § 35.151(e)(1) (1997); Walker Policy letter; see also

Daniels Policy letter.

122 Deval L. Patrick, Assistant Attorney General, CRD, DOJ,

letter to Frank D. Lucas, U.S. House of Representatives, Enid,

OK, Aug. 2, 1995, re: Accessibility, reprinted in 8 Nat'l Disability L. Rep. (LRP) ¶ 348 (hereafter cited as Lucas letter).

123 Ibid.

124 Brief for the United States as Amicus Curiae, Kinney. v.

Yerusalim, at 12, 812 F. Supp. 547 (1993), aff'd, 9 F.3d 1067

(3d. Cir. 1993), cert. denied sub nom. Hoskins v. Kinney, 511

U.S. 1033 (1994).
the lower court ruling that 28 C.F.R. § 35.151

covering new construction and alterations does

not allow an "undue burden" defense.'" The

court of appeals upheld the lower court ruling,

and the Supreme Court declined to accept the

case on appeal.'"

In early 1998, residents of Scranton, Pennsylvania, filed a suit against local officials, alleging that for several years the city had

"willfully refused" to install ramps or curb cuts

whenever it resurfaced streets in violation of

title II and the Kinney ruling.127 In addition to

compensatory and punitive damages, the residents are seeking declaratory and injunctive relief enjoining any future expenditures from the

city's capital budget until it installs curb cuts at

each corner of every street resurfaced since the

ADA's effective date of January 26, 1992, or

since the Third Circuit's decision in 1993.128

In another case, two individuals who use ambulatory devices for mobility filed suit against

Carlsbad, California, alleging denial of access to

the city's facilities and violation of the State law

prohibiting discrimination in public accommodations.128 The plaintiffs alleged that the defendant

city failed to develop an appropriate transition

plan on the installation of curb ramps, to make

existing facilities accessible, and to install curb

ramps to existing sidewalks, and improperly

modified existing curb ramps such that they did

not comply with the ADA access guidelines for

buildings. The city of Carlsbad provided evidence to show that it conducted a selfevaluation, initiated an ADA task force that received input from interested parties, and compiled information to develop the transition plan.

The court found the city had provided accessibility to the facilities in question and provided

curb ramps where necessary to provide access

125 Id. at 19.

126 Kinney v. Yerusalim, 9 F.3d 1067 (3rd Cir. 1993), cert.

denied sub 110M. mem., Hoskins v. Kinney, 511 U.S. 1033

(1994).

127 ADAPT of Scranton v. City of Scranton, No. 98-1003, 11

Nat'l Disabilities L. Rep. (LRP) 11 10 (M.D.Pa. Jan. 22, 1998).

Filing the lawsuit on the plaintiffs' behalf was ADAPT of

Scranton, an organization of Scranton residents with ambulatory disabilities. DOJ was not a party to this lawsuit. 128 Id.

129 Schonfeld v. City of Carlsbad, 978 F. Supp. 1329, 1331

(S.D. Cal. 1997). DOJ was not a party to this lawsuit.

along highly trafficked routes. The court granted

summary judgment for the defendant on all

plaintiffs' claims.'"

In Maryland, an individual with a perthanent

spinal injury sued the Montgomery County government under the ADA to prevent the installation of speed bumps on the street on which he

lives, claiming the speed bumps would interfere

with his use of the road because of the pain the

speed bumps would cause.131 The court found the

individual was unable to state a claim under title

II, since the speed bumps did not deny him

meaningful access to the road. Although the court

recognized that the speed bumps present difficulty, the bumps did not totally bar his use of the

road or leave him entirely unable to benefit

meaningfully from the streets. Further, the court

noted that neither title II nor the technical assistance manual promulgated by the Department of

Justice contains provisions on speed bumps.132

Although the Department of Justice has

taken steps to enforce ADA requirements on

sidewalks, curbs, and ramps, at least one advocacy group has informed the Commission there

are communities that have yet to comply. Further, this same advocacy group maintains the

Department of Justice delays too long (from 14

to 36 weeks) in responding to complaints about

such State and local governments, often only to

tell complainants it will not investigate.'"

Public Parking

Title II's program accessibility regulations134

also require State and local government entities

to make their public parking programs accessible to individuals with disabilities. Therefore, if

a State or local government provides parking at

a facility, it must provide an appropriate number

of accessible parking spaces for individuals with

disabilities.'" Further, title II prohibits a public

139 Id. at 1335-42.

131 Slager v. Duncan, No. AW-97-1598, 1997 U.S. Dist.

LEXIS 12963, at *1 (D. Md. Aug. 8, 1997). DOJ was not a

party to this lawsuit. . 132 Id. at *2.

133 Susan Prokop, Associate Advocacy Director, Paralyzed

Veterans of America, letter to Nadja Zalokar, Director, Americans with Disabilities Project, USCCR, May 26, 1998, p. 2.

134 28 C.F.R. §§ 35.149.151 (1997).

135 Deval L. Patrick, Assistant Attorney General, CRD, DOJ,

Policy letter to Bill Young, U.S. House of Representatives,

50

G 0
entity from imposing a surcharge on an individual with a disability for any measure that is necessary to ensure nondiscriminatory treatment

required by the ADA.138 According to a policy

letter, the State of Florida requires users of

parking spaces for individuals with disabilities

to display a permit costing $15 or special license

plates, which cost no more than regular

plates.137 However, individuals with disabilities

that limit their ability to walk significant distances, but who do not use wheelchairs, do not

have the option of obtaining the special license

plates. Instead, they must obtain the $15 special

parking permit. Failure to provide a cost-free

option for use of required accessible parking

spaces is a violation of title 11.138

Voting

Title II protects qualified individuals with

disabilities from discrimination in the State or

local electoral process. Polling places or voting

locations must be accessible. When polling places

are located in existing facilities, the public entity

must ensure that the voting "program," when

viewed in its entirety, is accessible to individuals

with disabilities. However, localities may initiate

methods or alternatives (to structural or physical accessibility) that provide access. Sample alternatives include the absentee ballot, mobile

voting units, and accessible areas at shopping

malls to carry out some of the voting procedures

to comply with the act.'" DOJ reviews the alleged failures to ensure the participation of persons with disabilities in the electoral process on

a case-by-case basis and on the issue in question.

Washington, DC, no date, re: Accessibility (hereafter cited as

Young Policy letter).

136 28 C.F.R. § 35.130 (f) (1997); Young Policy letter.

137 Young Policy letter.

138 Ibid.

139 Stewart B. Oneglia, Chief, Coordination and Review Section, CRD, DOJ, Policy letter to Unknown respondent, Colorado Springs, CO, Feb. 5, 1993, re: Accessibility (hereafter

cited as Oneglia Colorado Springs Policy letter); Stewart B.

Oneglia, Chief, Coordination and Review Section, CRD,

DOJ, Policy letter to Brenda K. Jacobs, Clark County Election Department, Las Vegas, NV, Aug. 19, 1993, re: Accessibility (hereafter cited as Jacobs Policy letter); Deval L. Patrick, Assistant Attorney General, CRD, DOJ, Policy letter to

Strom Thurmond, U.S. Senate, Washington, DC, no date, re:

Accessibility (hereafter cited as Thurmond Policy letter); See

also Hatfield Policy letter.

51

In one situation, a county election department failed to provide access to the polling site

at a high school auditorium. As a result, an individual with a mobility impairment had to vote in

the hallway.140 DOJ determined that the

county's use of the curbside voting procedure did

not violate title II, noting that existing polling

places are not required to be accessible, provided

that alternative methods are effective in enabling individuals with disabilities to cast a ballot

on the day of the election.141

In another setting, an individual claimed he could not participate as a candidate in the

State's nomination process because of his disability, alleging discrimination in the petition

process because unlike other nondisabled candidates, he could not walk door to door to collect

signatures due to his mobility impairment.142 In

its analysis, DOJ concluded the State law is not

discriminatory because the State provides 5

months to collect signatures and that individuals

who seek nomination through the petition process are not required to collect the signatures in

person. For example, nominees may collect signatures at public parks, public buildings, shopping malls, or other areas.143

In a case filed by a nonprofit organization,

the Philadelphia County (Pennsylvania) Board

of Elections was charged with violating the ADA

and the Voting Rights Act by prohibiting voters

with disabilities from receiving assistance in

picking up and returning absentee ballot packages.144 In addition to depositing ballots in a

mailbox or personally delivering them to the

board of elections, voters could have another

person mail their ballots for them or give them

directly to a mail carrier. The board of commissioners also could authorize an agent to deliver

or pick up the ballots. The court held that these

alternatives allowed individuals with disabilities

149 Jacobs Policy letter.

141 Ibid.

142 Oneglia Orlando Policy letter.

143 Ibid.

144 Jacobs v. Philadelphia County Bd. of Elections, No.

CIV.A. 94-6666, 1995 U.S. Dist. LEXIS 16013, at *2*4,

(E.D. Pa. Oct. 30, 1995). These measures were mandated by

the district court in an earlier voting fraud case and changed

the prior practice allowing an agent designated by the voter

to obtain and return the absentee ballot. Id. DOJ was not a

party to this lawsuit.

61
the opportunity to participate in the electoral

process, and therefore the elections procedures

did not violate the statutory standards of the

ADA or the Voting Rights Act.145

DOJ has indicated that State and local governments are not required to provide Braille

ballots or electronic voting to enable individuals

with vision impairments to vote without assistance. Poll workers who provide assistance to

voters are required to respect the confidentiality

of the voter's ballot, and the voter has the option

of selecting an individual of his or her choice to

provide assistance in place of poll workers.146

New Construction and Alterations

The title II regulations require all facilities

designed, constructed, or altered by, on behalf of,

or for the use of a public entity to be readily accessible to and usable by individuals with disabilities, if the construction or alteration began

after January 26, 1992.147 When making alterations to an existing building or constructing a

new building or facility, a public entity must

meet the requirements set forth in either the

Uniform Federal Accessibility Standards (UFAS)

or the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG).148 The UFAS and

the ADAAG specify the elements and spaces that

must be accessible, as well as the technical requirements for meeting building accessibility

145 Id. at *5*6. But see Dipietrae v. City of Philadelphia,

666 A.2d 1132, 1135-36 (Pa. Commw. Ct. 1995) (Pa. Election

Code allows disabled voter to appoint agent of choice to obtain absentee ballot and deliver it to election board), aff'd

per curiam, 673 A.2d 905 (1996). The federal court in Jacobs

rejected the 1995 Dipietrae decision, noting that while Federal courts are "bound to 'give due consideration to the decisional law of inferior state courts' [they are] not required to

give those decisions binding effect." Jacobs, 1995 U.S. Dist.

LEXIS 16013, at *7*8 (citing Dillinger v. Caterpillar, Inc.,

959 F.2d 430, 435 n.11 (3rd Cir. 1992)). DOJ was not a party

to this lawsuit.

148 Oneglia Pinellas County, FL, Policy letter; Ruggles Policy

letter.

147 28 C.F.R. §§ 35.151 (a)(b) (1997).

148 Id. § 35.151(c). Departures from the particular requirements of either standard are permitted "when it is clearly

evident that equivalent access to the facility or part of the

facility is thereby provided." Id. See also James P. Turner,

Acting Assistant Attorney General, CRD, DOJ, letter to J.

James Exon, U.S. Senate, Washington, DC 20510, Apr. 26,

1993, re: Accessibility, reprinted in 5 Nat'l Disability L. Rep.

(LRP) ¶ 250.

52

requirements.140 (An elevator exception for

newly constructed "small buildings" applies only

to privately owned buildings, not State and local

government facilities.150)

One DRS architect has found the interaction

of civil rights and building codes is often a difficult concept for both architects and lawyers to

grasp. Cross training is, therefore, necessary,

and DRS architects provide training related to

the ADA standards and how they are applied.

DRS architects also work in technical assistance

and certification.151

DRS staff has indicated that the building industry expresses confusion about who should be

held accountable for ensuring compliance with

ADA accessibility regulations. DRS' position,

expressed in a September 1995 policy letter, is

that since architects draw plans and design

buildings, they should do so with accessibility in

mind.152 However, architects believe that building owners should be held accountable and liable

when compliance is not met, because owners often do not allow them to design accessible

buildings and will take their business elsewhere

if architects do not follow their instructions.153

As architects become more aware of the ADA,

the questions they ask have become more advanced. The total number of written technical

assistance requests that DRS receives has remained the same, but the number of phone calls

for technical assistance has increased.154

DRS is now trying to promote uniformity in

the regulations with which builders must comply.

DRS staff believes standards should not be made

more stringent than they are because they were

not designed to accommodate all persons with

disabilities. It contends accessibility and cost

148 28 C.F.R. pt. 36, app. A (1997) (ADAAG); 41 C.F.R. subpt.

101-19.6, app. A (1997) (UFAS).

150 Moynihan Policy letter.

151 Ellen Harland, Architect, DRS, CRD, DOJ, interview in

Washington, DC, Apr. 14, 1998, p. 2 (hereafter cited as

Harland interview).

152 Deval Patrick, Assistant Attorney General, CRD, DOJ,

letter to Donald A. Manzullo, U.S. House of Representatives,

re Liability of Architects and Contractors, Sept. 11, 1995,

reprinted in 8 Nat'l Disability Law Rep. ¶ 282. The letter

clarifies that architects are liable under title III, but does

not address title II liability.

153 Harland interview, p. 3.

154 Ibid.

62
should be balanced. One DRS architect voiced her

support for the standards for new construction,

saying they are very clear and easy to comply

with. The standards for alteration recognize that

constraints in an existing structure may limit

possible accessibility modifications. Most compliance problems and difficulties arise in existing

structures. A number of complaints dealing with

new construction is being filed under title II.155

Certification

Certification is a title III issue because the

certification procedure was established in the

enforcement mechanism of title III, which applies only to privately owned facilities. State and

local governments are not required to obtain

building permits.156 However, because some

State and local governments may own privately

used facilities, or may occupy or lease privately

owned facilities, certification issues may also fall

under title II.

Although States benefit from certification in

that they better serve their citizens, architects

and builders would benefit most from certification.157 Local building inspectors could then raise

the comfort level of individuals who obtain permits by notifying them they will be in compliance with ADA by complying with local codes.

There is no plan review or building inspection

process at the Federal leve1.158 If a State's

building code and the ADA requirements are

almost identical, then there is no conflict. Thus,

for all intents and purposes, States can achieve

the equivalent to certification by amending their

codes to follow the ADA closely.159 However,

public accommodations and commercial facilities

that are involved in ADA lawsuits will not be

able to claim the evidentiary advantage provided

by certification.169

When the certification process was first written into the title III regulation, no consideration

was given to the number of building codes in exis155 Ibid., p. 4.

156 Ibid., pp. 3-4.

157 Janet Blizard, Supervisory Attorney for Coordination and

Certification, DRS, CRD, DOJ, interview in Washington,

DC, Apr. 15, 1998, p. 3 (hereafter cited as Blizard interview).

158 Harland interview, p. 4.

169 Blizard interview, p. 3.

160 DOJ Comments, July 24, 1998, p. 3.

53

tence,161 about 450 in the United States. The certification process has proved to be a daunting responsibility. DOJ does not certify the individual

plans of builders. In a certified State, builders can

ask for waivers from their local building boards.162

State and local governments may, but are not

required to, apply for certification by DOJ that

indicates a State or local building code meets or

exceeds minimum ADA title III requirements for

accessibility and usability of places of public accommodation and commercial facilities.163 The

ADA does not require State and local governments to apply to the agency for certification, and

since State and local officials have no jurisdiction

to enforce the ADA, they are not obligated to ensure compliance with the standards for commercial or noncommercial facilities.'"

Equally Effective Communication

Title II requires State and local governments

to ensure their communications with program

participants and members of the public with disabilities are as effective as their communications

with other participants, unless doing so would

result in a fundamental alteration to the program or create undue financial and administrative burdens.165 Public entities may be required

to provide interpreters, visual aids, and other

mechanisms that enable individuals with disabilities to have full access to public programs.166

The regulations state that in deciding "what type

of auxiliary aid and services is necessary, a pub161 The certification process was enacted by Congress in title

III of the ADA. It is not a concept created by the DOJ regulations. DRS has no information that would enable it to

know whether Congress considered the number of codes or

code jurisdictions in this country. DOJ Comments, July 24,

1998, p. 3.

162 Harland interview, p. 4. States do not have the authority

to waive ADA requirements. State or local building officials

may advise builders about possible applications of certain

limitations that are included in the ADA Standards, but

State officials' approval of modifications of the standards are

not binding in ADA enforcement proceedings. DOJ Comments, July 24, 1998, p. 3.

163 28 C.F.R. § 36.602 (1997); Hatfield letter.

164 See Hatfield letter.

165 28 C.F.R. §§ 35.160.164 (1997); John L. Wodatch, Chief,

DRS, CRD, DOJ, Unknown letter, July 23, 1996, re: Accessibility, reprinted in 8 Nat'l Disability L. Rep. (LRP) ¶ 394

(hereafter cited as Wodatch Unknown #2 letter).

166 Wodatch Unknown #2 letter.

63
lic entity shall give primary consideration to the

requests of the individual with disabilities."167

The regulations also specify that public entities should ensure that they provide effective

communication for people who use telecommunications devices for the deaf (TDDs),direct access

to telephone emergency services for people who

use TDDs or computer modems, and information

and signage about the locations of accessible

services and facilities for persons with disabilities.168 For example, to comply with the regulation on information and signage, a public entity

shall (a) "ensure that interested persons, including persons with impaired vision or hearing,

can obtain information as to the existence and

location of accessible services, activities, and facilities"; and (b) "provide signage at all inaccessible entrances to each of its facilities, directing

users to an accessible entrance or to a location at

which they can obtain information about accessible facilities." Public entities also should display the international symbol for accessibility at

each accessible entrance of a facility.169

General Requirements

"Communication" encompasses many different forms of conveying information in diverse

settings. The ADA does not require public entities to provide auxiliary aids and services in

every situation, and questions sometimes arise

as to when such assistance must be provided.

For instance, one issue concerns when interpreters become necessary in the contexts of health

care, law enforcement, and the courts. Another

question is how an entity should determine

whether the interpreter is qualified, once it has

been determined that an interpreter is required.

The Ninth Circuit considered this question in

Duffy u. Rive land. The court relied on the plain

language of the regulationsl" to find that an

interpreter did not necessarily have to be certi167 28 C.F.R. § 35.160(6)(2)(1997).

168 Id. §§ 35.161-163.

169 Id. § 35.163(a),(b).

179 Id. § 104 (1997) defines "qualified interpreter" as "an

interpreter who is able to interpret effectively, accurately,

and impartially, both receptively and expressively, using

any necessary specialized vocabula:y."

54

fled by the National Registry of Interpreters for

the Deaf to be considered qualified.'"

DOJ has written several policy letters to provide guidance on equally effective communication in varied contexts. For example, State or

local governments that provide tornado and

other emergency warnings must ensure that the

warnings are accessible to persons with disabilities, unless this would result in a fundamental

alteration or undue burden. State and local governments may consider flashing lights as a possible means of ensuring effective communication,

although the regulations do not dictate use of

any particular method or device to meet effective

communication requirements.172 In terms of

educational institutions, universities and colleges are responsible for providing qualified interpreters where necessary to ensure effective

communication for persons with disabilities, and

are not excused from this responsibility even if

they do not receive outside funds to cover the

cost of the services.173 Courts must ensure effective communication through appropriate auxiliary aids, including sign language interpreters.174 Theaters owned and operated by State or

local governments must meet title II program

accessibility requirements. However, although

theaters may provide tickets and programs in

Braille to persons with visual impairments, they

are not required to do so. For example, if a theater provides an usher to guide persons with visual impairments to their seats, in most instances

effective communication has been provided. Ef171 Duffy v. Rive land, 98 F.3d 447, 455-56 (9th Cir. 1996).

The plaintiff, a deaf Washington State prisoner, sought a

certified interpreter for disciplinary and classification hearings he was involved in. Id. at 450. The interpreter provided

had no training in sign language. Rather, she was a correctional mental health officer who learned to sign from her

parents. The court noted that these facts raised questions

regarding her accuracy and impartiality, both of which are

material to the definition of "qualified interpreter" in the

ADA regulations. It, therefore, reversed the district court's

grant of summary judgment for the State on the plaintiffs

ADA claims and remanded the case for trial. Id. at 456, 458.

172 Wodatch Unknown #2 letter.

179 Stewart B. Oneglia, Chief, Coordination and Review Section, CRD, DOJ, Policy Unknown letter, Minneapolis, MN,

no date, re: Accessibility (hereafter sited Oneglia Unknown

MN policy letter).

174 Deval L. Patrick, Assistant Attorney General, CRD, DOJ,

Policy letter to Trent Lott, U.S. Senate, Washington, DC, no

date, re: Accessibility (hereafter cited as Lott Policy letter).

64
fective communication also may be provided by

making available tape-recorded versions of the

program, or by making available persons who

can read programs to individuals with visual

impairments.'"

Forms of Communication

Interpreters

It appears that public entities often fail to

provide sign language interpreters for persons

with hearing disabilities as required under title

II of the ADA.176 One advocate recounted the

following anecdote:

Our technical assistance hot line received a call in 1995

from a court in California with the question, "Were we

wrong?' Apparently, a defendant who was deaf was

arrested. When he arrived in court, he wrote a note to

the judge asking for the reasonable accommodation of

an interpreter. The judge, aware that the county had

just purchased an assistive listening device system,

ordered the clerk to provide the device to the defendant.

175 John R. Dunne, Assistant Attorney General, CRD, DOJ,

Policy letter to Alan Wheat, U.S. House of Representatives,

Washington, DC, no date, re: Accessibility (hereafter cited as

Wheat policy letter). 178 See Eichenauer letter, p. 3 ("Dental, as well as large

medical providers, have been hesitant to provide sign language interpreters. . . . Many places state that they have only enough money to pay for two interpreters a year.");

Martin letter, enclosure, p. 19 ("One of the most common

problems is the refusal of colleges and universities to provide auxiliary aids such as readers, note-takers or sign language interpreters."); Bower letter, enclosure, p. 5 ("The

largest county court in Oklahoma refused to provide sign

interpreters for a civil wedding ceremony. . . Since then

another outlying district court has been reported to charge

interpreters fees as costs to persons with disabilities in civil

actions. . . . Another metropolitan district court refused to

provide effective accommodation to a man who could not hear the civil court proceedings."); Ringer letter, p. 6

("[A]mong locations where our office has intervened through

advocacy include. . .several courts in south and north Georgia which were not providing sign language interpreters. . .[and] several law enforcement agencies. . .to provide sign

language interpreters in questioning a suspect."); Berliner

letter, p. 5 ("The elimination of communication barriers

continues to be an area of on-going concern. This is especially critical with public schools, which often elect to avoid

providing any interpreter services for persons with hearing

impairments. . . . The agency [also] has received complaints

that the police and other emergency response personnel do

not provide sign language interpreters for persons with

hearing impairments."); Maes letter, enclosure, p. 8 ("We

have had a handful of cases regarding the lack of an interpreter for an individual who is deaf in an emergency room

situation, in court, or in police custody.").

55

The device was provided. The defendant did not make

use of the device and wrote back to the judge, "still

need interpreter." The judge did not inquire why the

defendant felt that he still needed an interpreter, and

proceeded with the trial, feeling. . .that they had made

reasonable attempt to provide an accommodation, and

that the final choice as to what accommodation would

be provided resided with the governmental agency.

[The defendant could not use the assistive listening

device because of the severity of his hearing loss. The

defendant was found guilty.] 77 Advocacy groups are attempting to educate public entities about their obligation under title II of

the ADA to provide auxiliary aids such as interpreters.178 It appears, however, that this is an

area in which additional outreach and enforcement efforts by the Department of Justice would

be beneficial.

TDD Services

For most public facilities the ADA standards

only require the provision of a public TDD when

the facility provides four or more public pay

telephones.179 Pay telephones installed on city

property constitute a service provided by the

city. Thus, the city, not the telephone company,

is responsible for the cost of any required accessibility changes, such as replacing standard

telephones with amplified models or coinoperated TDD. However, the city could negotiate

with the telephone company to perform TDD

installations."'"

177 Martin letter, enclosure, p. 20. 178 Ibid., enclosure, p. 19; Bower letter, enclosure, p. 5;

Ringer letter, p. 6; Berliner letter, p. 5; Maes letter, enclosure, p. 8. 179 Deval L. Patrick, Assistant General, CRD, DOJ, letter to

Kay Bailey Hutchinson, U.S. Senate, Dallas, TX, Dec. 28,

1996, re: Accessibility, reprinted in 10 Nat'l Disability L.

Rep. (LRP) ¶ 200 (hereafter cited as Hutchinson letter).

180 John L. Wodatch, Chief, DRS (formerly Public Access

Section), CRD, DOJ, Policy letter to Camille Jones, Culver

City Human Resources Department, Culver City, CA, Nov.

19, 1993, re: Accessibility (hereafter cited as Jones policy

letter). The requirements for TDDs that are contained in the

ADA Standards for Accessible Design are applicable only

when the public entity chooses to provide public telephones

in new construction or alterations, or as "program accessibility" if the public entity uses public telephones as part of

its programs. There is no "effective communication" requirement to provide TDD-equipped public telephones. DOJ

Comments, July 24, 1998, p. 4.
Signage and Auxiliary Aids

The ADA also covers signs and other visual

aids to assist persons with disabilities. The ADA

Accessibility Guidelines for Buildings and Facilities are specific about the dimensions of signs

and how written descriptions should be

placed.181 In one policy letter, DOJ explained

that the standards require each fixed seat in an

assembly area be identified by a sign or marker.

In addition, facilities that must be identified as

accessible under the standards must use the international symbol of accessibility.182

DOJ has stated that interpreters are not required for all situations, and other auxiliary aids

may be adequate. DOJ wrote to one individual:

In determining what constitutes an effective auxiliary

aid or service, covered entities must consider, among

other things, the length and complexity of the communication involved. A note pad and written materials may be sufficient means for short, uncomplicated

communications. Where, however, the information to

be conveyed is lengthy or complex, the use of an interpreter may be the only effective form of communication. Use of interpreter services is not necessarily

limited to the most extreme situations.183

Despite this policy guidance, some disability

rights advocates have said that DOJ needs to

provide clearer and more comprehensive guidelines for effective communication requirements.184 According to one State disability rights

advocate, State and local courts have refused to

provide sign language interpreters for persons

181 28 C.F.R. pt. 36, app. A § 4.30 (1997). See also John R.

Dunne, Assistant Attorney General, CRD, DOJ, Policy letter

to Scott Klug, U.S. House of Representatives, Madison, WI,

Sept. 29, 1992, re: Accessibility.

182 Janet L. Blizard, Supervisory Attorney, DRS, CRD, DOJ,

letter to Mario Pimenta, Product Manager, Auditorium/Theater Seating, Quakertown, PA, re: Accessibility,

reprinted in 6 Nat'l Disability L. Rep. (LRP) II 26 (hereafter

cited as Pimenta letter); 28 C.F.R. pt. 36, appendix A, §§

4.1.2(7), 4.30.7 (1997). According to DRS, the seats that

must be marked are aisle seats with removable armrests.

DOJ Comments, July 24, 1998, p. 4.

183 Lott policy letter.

184 NIDRR, ADA Project Directors' responses ("The whole

issue of "effective communications" for Title II and Title III

entities needs more attention, guidance materials, and enforcement.").

56

with hearing impairments or have charged fees

for interpreters' services.185 For instance:

The largest county court in Oklahoma refused to provide sign interpreters for a civil wedding ceremony. Our

office filed a writ of mandamus at the Oklahoma Supreme Court to obtain compliance. Since then another

outlying district court has been reported to charge interpreters' fees as costs to persons with disabilities in

civil actions. . . . Another metropolitan district court

refused to provide effective accommodation to a man

who could not hear the civil court proceedings. He had

been participating through several hearings at the

point he contacted our office. Our office intervened

through negotiation and obtained a Real Time reporter

so that he could hear the proceedings.186

This same advocate notes that although DOJ

officials have been responsive when she has

sought assistance in title III cases, DOJ personnel do not seem interested in taking on title II

cases.187 Since DOJ participation in title III

cases has led to quick compliance by commercial

entities, she believes similar Federal attention in

title II cases would help reduce instances of noncompliance, such as those mentioned above.188

911 Emergency Telephone Services

The title II regulations expressly require

public entities to provide individuals who use

TDDs direct access to emergency phone services

such as 911.189 The title II regulations also specify that public entities must afford to TDD users

an opportunity to benefit from their services that

185 Bower letter, p. 5.

186 Bower letter, p. 5. See also Lawrence Berliner, General

Counsel, Connecticut Office of Protection and Advocacy for

Persons with Disabilities, letter to Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, Apr. 20, 1998, pp. 4-5.

("The elimination of communication barriers continues to be

an area of ongoing concern. This is especially critical with

public schools, which often elect to avoid providing any interpreter services for persons with hearing impairments.") According to DRS, DOJ did not receive any complaints alleging

the described matters. DOJ Comments, July 24, 1998, p. 4.

187 Kayla Bower, Executive Director, Oklahoma Disability

Law Center, telephone interview, Apr. 27, 1998 (hereafter

cited as Bower interview).

188 Ibid.

189 28 C.F.R. § 35.162 (1997). 28 C.F.R. § 35.161 provides

that where "a public entity communicates by telephone with

all applicants and beneficiaries, TDD's or equally effective

telecommunication systems shall be used to communicate

with individuals with impaired hearing or speech."

66
is equal to the opportunity afforded to others. In

September 1996, DRS began a special project in

conjunction with U.S. attorneys' offices nationwide to review the accessibility of 911 services.

U.S. attorneys' offices were directed to initiate

compliance reviews of and investigate complaints regarding 911 providers in their districts.

DRS trained staff from each U.S. attorney's office and monitors all of their investigations. A

DRS trial attorney coordinates the project and

supervises the work of the U.S. attorney staff. As

a result of this project, the accessibility of more

than 500 911 providers has been reviewed, and

non-ADA-complaint providers have been

brought into compliance through settlement

agreements and letter agreements.199

Through policy letters, DOJ has indicated

that a State may use a 911 system that directs

all emergency TDD calls through the 911 system, as long as the system receives and processes nonvoice calls as effectively as voice calls;

nonvoice callers who are directed through the

enhanced system receive attention as quickly as

voice callers who dial local seven-digit numbers

rather than 911; and any emergency services

provided by a State or local government entity

that are not connected to the enhanced system

are directly accessible to nonvoice callers.191

In addition, several public safety agencies of

the same municipality may share a TDD for nonemergency calls, as long as this system works at

least as effectively for persons using the TDD

system as for those using seven-digit nonemergency calls.192 However, any emergency service

provided by the State or local government entity

that is not tied to the 911 system would have to

provide direct access to nonvoice callers.193 If, for

199 Wodatch letter, Mar. 19, 1998, enclosure, "Preliminary

Information Request for the Disability Rights Section, Subject: Staff Training," Response to Question No. 1, p. 2; Staff,

DRS, CRD, DOJ, interview in Washington, Sept. 3, 1997, p.

4 (hereafter cited as DRS Staff September 1997 interview);

DOJ Comments, July 24, 1998, p. 4.

191 John L. Wodatch, Chief, DRS (formerly the Public Access

System), CRD, DOJ, letter to Nancy Husted-Jensen, Chairperson and State ADA Coordinator, Providence, RI, re: Accessibility, reprinted in 5 NDLE ¶ 222 (hereafter cited as

Husted-Jensen letter).

192 Husted-Jensen letter.

193 28 C.F. R. § 35.162 (1997). See also Husted-Jensen letter.

The regulation states that emergency services shall provide

direct access to individuals who use TDDs and computer

57

example, the State offers emergency poison control information that cannot be accessed through

911, the telephone emergency service would

have to be equipped with a TDD to provide direct access for nonvoice callers.194

In 1995, DOJ reached a formal agreement

with the City of Chicago to provide 911 emergency

services to individuals with hearing or speech impairments. The agreement resolved three complaints filed independently with DOJ by deaf individuals who were unable to obtain urgent medical assistance by calling 911.195 The City of Chicago was directed to install TDD devices in its 911

emergency center and train dispatchers in handling emergency calls from TDD users.196

The Civil Rights Division and the U.S. Attorney's Office for the District of Arizona have filed

ainicus curiae briefs at the district and appellate

court levels in a case alleging that the 911 system in Phoenix violated the ADA.197 In this case,

three deaf individuals alleged that the city required 911 callers using a TDD to activate an

audible tone (by pressing the space bar on the

TDD) to indicate to the 911 operator that the

incoming call was a TDD call. The court found

that this requirement violated the ADA because

it did not provide direct or equally effective access to callers using TDDs because not all TDDs

generate tones, and it would be unfamiliar, and

many times impossible, for a caller to press a key

repeatedly until recognize d.198

DOJ regulations require that telephone emergency services provide direct access to individuals

modems. "Direct access" means that emergency telephone

services can directly receive calls from TDD and computer

modem users without relying on outside relay services or

third party services. Where 911 service is available, direct

access must be provided to individuals who use TDDs and

computer modems. The requirement for direct access disallows the use of a separate seven-digit number for person

with hearing impairments where 911 service is available.

194 Husted-Jensen letter.

199 DOJ, CRD, Enforcing the ADA. A Special Status Report

from the Department of Justice (1995), p. 3.

196 Ibid.

197 Ferguson v. City of Phoenix, 931 F. Supp. 688 (1996);

DOJ, CRD, DRS, Enforcing the ADA: A Status Report from

the Department of Justice (October 1995-March 1996)

(hereafter cited as DOJ/CRD, ADA Quarterly Status Report

(October 1995-March 1996)), p. 5.

199 Ferguson, 931 F. Supp. at 691-93; DOJ Comments, July

24, 1998, p. 5.

(3 P.7
who use TDDs and computer'inodems.199 The Title II Technical Assistance Manual interprets and

elaborates on the regulations, stating that space

bar or additional dialing requirements are not

permissible.200 The city contended that since the

911 system provided TDD callers "direct access" to

the system, the "no space bar" requirement of the

regulations was "arbitrary and capricious."201 The

U.S. district court upheld DOJ's "no space bar"

interpretation, finding that it "reflects a reasonable reading of the statute," and denied the city's

motion for summary judgment.202 Although the

plaintiffs had requested punitive damages, the

court determined that there was insufficient evidence at this time to establish that the city intentionally violated the ADA and the Rehabilitation

Act.203 The court, therefore, denied the request,

but noted that plaintiffs had not yet had their opportunity for discovery.

In another privately litigated case, individuals

with hearing impairments alleged that New York

City violated title II of the ADA, the RehabilitatiOn Act, and the equal protection clause of the

Constitution by planning to replace two-button

street alarm boxes with one-button boxes to be

used in conjunction with a protocol for tapping on

a speaker by hearing-impaired individuals to indicate the type of emergency.204 The city also

planned to install fewer new alarm boxes than

had existed before.205 The court ruled that the

reduction in the number of alarm boxes did not

199 28 C.F.R. § 35.162 (1997).

200 Ferguson, 931 F. Supp. at 694.

201 Id.

202 Id. at 695-96 (quoting Republican National Committee v.

Federal Elec. Comm'n, 76 F.3d 400, 405 (D.C. Cir. 1996)).

203 Id. at 690. In this case, for the plaintiffs to receive compensatory damages, they had to demonstrate that the city

engaged in intentional discrimination or deliberately disregarded the plaintiffs' rights. The court ruled that the plaintiffs had not proved intentional discrimination. Id. at 697.

204 Civic Ass'n of the Deaf of N.Y.C. v. Giuliani,. 970 F. Supp.

352, 354 (S.D.N.Y. 1997). DOJ was not a party to this lawsuit.

205 Id. at 355-57. The two-button boxes contained a red button to be used in case of fire and a blue button to summon

the police. Both the one- and two-button boxes had speakers

through which users could communicate the nature of the

emergency. The protocol developed for hearing-impaired

individuals provided that a single tap on the mouthpiece of

an Emergency Response System box signified a request for

the police, while a double tap indicated a request for fire

services. Id. at 356.

58

violate the ADA, since it would not constitute a

complete elimination of boxes. A significant number of alarm boxes would remain on the street,

and thus, the system would be "readily accessible," even if less accessible than previously.

In this case, the court ruled that the conversion to new alarm boxes constituted an

"alteration" of the public "facility" for reporting

emergencies from the street. Based on the evidence presented, the court found that the new

boxes did not provide adequate access for the

deaf and hearing impaired.206 In tests conducted

by the defendants, the majority of calls using the

new boxes received no response (an 82 percent

failure rate). Based on this failure rate, the court

held the new alarm box system was inaccessible

to and unusable by the hearing impaired and

thus violated the ADA.207 The U.S. District

Court for the Southern District of New York required the defendants to convert all one-button

emergency alarm boxes to two-button boxes but

did not require the restoration of boxes that had

been removed.208

In 1997, DOJ intervened in Miller v. District

of Columbia, a suit alleging that the District of

Columbia 911 provider failed to respond to 911

calls made by TDD users. This case was settled

by consent decree.209 In 1997 and 1998, DRS and

U.S. attorneys' offices have signed numerous

settlement agreements with 911 providers requiring them to install additional TDD equipment, implement appropriate policies for recognition and handling of TDD calls, train personnel in these polices, and implement testing programs for equipment and personnel. These

206 Id. at 359-62.

207 Id. at 359-60.

299 Id. at 363. Replacing all of the removed boxes would have

cost the city approximately $5.4 million. Id. at 362. The

court permitted plaintiffs to reapply for further relief if evidence arose that hearing impaired individuals had not been

appraised of the E-911 tapping protocol within 3 months or

that dispatchers were not responding appropriately to tapping calls. Id. at 363.

209 Wodatch letter, Feb. 6, 1998, enclosure, "Preliminary Information Request for the Disability Rights Section, Subject:

Complaints Processing, Response to Question No. 3." On April

14, 1998 the court issued a consent order in which the defendant will pay $15,000 in compensatory damages to each of the

two plaintiffs. DOJ Comments, July 24, 1998, p. 5.
agreements are the results of both complaint

investigations and complaint reviews.210

DRS recently issued a new technical assistance document, "ADA Access for 9-1-1 and

Telephone Emergency Services," which provides

specific guidance on how 911 providers must

comply with the ADA. Through this new guidance, DOJ has indicated that telephone emergency services must provide service that is as

effective for callers who use TDDs as it is for

callers who use voice telephones, in terms of response time and quality.211

Despite DOJ's efforts, disability rights advocates have indicated that 911 operators continue

to hang up on phone calls from persons using

TDDs.212 This could be avoided with further education of 911 operators to recognize TDD calls.

Public Employment

Employment discrimination under title II is a

very important area of ADA law and policy in

large part because of the numerous people

working for State or local governments and the

many facilities and services they provide. To

date, DOJ has addressed the issues surrounding

title II's prohibition against discrimination in

public employment various ways. In its title II

regulations, DOJ included a provision expressly

banning discrimination in public employment.213

210 DOJ Comments, July 24, 1998, p. 5.

211 Ibid.

212 David Eichenauer, Access to Independence and Mobility,

letter to Nadja Zalokar, Director, Americans with Disabilities Project, USCCR, June 4, 1998, p. 4; Michelle Martin,

Staff Services Analyst, California Department of Rehabilitation, letter to Nadja Zalokar, Director, Americans with Disabilities Project, USCCR, May 11, 1998, p. 21.

213 28 C.F.R. § 35.140 (a) (1997). The regulation provides

that "[no] qualified individual with a disability shall, on the

basis of disability, be subjected to discrimination in employment under any service, program, or activity conducted

by a public entity." Id. In employment, a "qualified individual with a disability" is an employee or job applicant who

meets legitimate skill, experience, education, or other requirements of an employment position that he or she holds

or seeks. The person must also be able to perform the

"essential" (as opposed to marginal or incidental) functions

of the position either with or without reasonable accommodation. Job requirements that screen out or tend to screen

out people with disabilities are legitimate only if they are

job-related and consistent with business necessity. See DOJ,

CRD, DRS, "Questions and Answers: The Americans with

Disabilities Act and Hiring Police Officers," (hereafter cited

as DOJ/CRD, "The ADA and Hiring Police Officers"); see also

59

BEST COPY AVAILABLE

DOJ also has responded to inquiries on this issue with policy letters. In addition, DOJ has issued technical assistance materials, such as its

Title II Technical Assistance Manual. Finally,

and perhaps most important in terms of potential effect, DOJ has filed amicus briefs in cases

addressing title II and its availability as a cause

of action for public employment discrimination.214 However, DOJ has not issued a formal

policy guidance that would benefit legal, investigative, and administrative staff in DRS, nor has

it taken a consistent, active role in litigation on

this issue.

Relationship Between Titles I and II in

Public Employment

DOJ's earliest attempt to address the issue of

public employment under title II was the drafting

of its ADA regulations. The proposed regulations

for implementing the public employment provision of title II indicated that these regulations

would be coextensive with EEOC's title I regulations for private employment and labor unions.

This would have meant that DOJ would use the

title I regulatory provision that limited coverage

to public entities with more than 25, and later 15

employees. In addition, DOJ would have had to

follow the same effective dates as title I, which

went into effect on July 26, 1992, for employers

with 25 or more employees and on January 26,

1994, for employers with 15 to 24 employees.

However, DOJ received comments in response to

its proposed rule objecting to this approach.

Commentators in favor of broader coverage under

title II found that the proposed rule failed to recognize that Congress intended to establish nondiscrimination requirements in employment for

all public entities, regardless of the number of

employees. They also stated that Congress intended the employment requirements of title II to

become effective at the same time that the other

28 C.F.R. § 35.104 (1997) (definition of "qualified individual

with a disability").

214 The Title II Technical Assistance Manual and the arnicus

briefs provide policy guidance on employment. Between fiscal

year 1992 and the end of fiscal year 1997 (Oct. 1, 1991 through

Sept. 30, 1997), DRS has been involved in 20 cases concerning

employment issues. DOJ Comments, July 24, 1998, p. 5.
requirements of the title II regulations became

effective, i.e., January 26, 1992.215

DOJ's final title II regulations prohibit employment discrimination within all activities of

public entities and obligate State and local entities to institute nondiscriminatory employment

practices for persons with disabilities.216 The

regulations also provide that the requirements of

title I apply if the public entity is also subject to

title 1.217 If the public entity is not also subject to

title Ibecause it employs fewer than 15 employeesthe requirements of section 504 of the

Rehabilitation Act of 1973 apply to employment

discrimination claims.218 EEOC has litigation

authority for all private employers under title I.

However, with respect to employment with a

State or local government, DOJ is the only Federal agency that can litigate on behalf of the

Federal Government.219 EEOC, therefore, plays

a different role in the public employment setting,

much like the one assumed by the other designated agencies under title II, in that it must refer such cases to DOJ for litigation.

EEOC, like other designated agencies under

title II, investigates a charge of discrimination.

If a violation is found, EEOC attempts to obtain

a negotiated settlement. Thus, some public employment cases are settled before DOJ gets involved. If EEOC cannot obtain voluntary compliance in a case against a public employer, it

can refer the case to DOJ to litigate.220 DRS estimates it receives about 75 referrals from EEOC

215 28 C.F.R. pt. 35, app. A § 35.140 (1997); U.S. Equal Employment Opportunity Commission and the U.S. Department of Justice, Americans with Disabilities Act Handbook,

(undated) p. 11-54 (hereafter cited as EEOC and DOJ, ADA

Handbook).

216 28 C.F.R. § 35.140 (a) (1997).

217 Id. § 35.140(6)(1). Title I applies to public, as well as private, employers who have 15 or more employees for 20 or

more calendar weeks in the current or preceding year. See

42 U.S.C. § 1211(2),(5) (1997).

218 28 C.F.R. § 35.140(b)(2) (1997).

219 See Wodatch letter, Mar. 19, 1998, enclosure, "Subject:

Mission, Function, Responsibilities, Planning, Organization,

Staffing and Budget, Disability Rights Section Response to

Request for Documents No. 1," pp. 1-2.

229 DRS Staff November 1997 interview, p. 3 (statement of

John Wodatch).

60

each year. Of these, DRS litigates only about 5

percent, resolving the others before litigation.221

A deficiency in DOJ's approach to issues regarding public employment is a lack of clear

guidance. For example, the applicability of title

II to employment and its incorporation of the

title I employment standards caused confusion

in the early stages of implementation of the

ADA. In a request for information, a State government questioned the effective date of the

ADA's coverage of public employers. In response

to this inquiry, DOJ prepared a policy letter

which clearly stated that title II applies to employment practices and activities of State and

local governments, that the provisions of title II

went into effect on January 26, 1992, and that

the title II regulations incorporate the standards

for employment practices under title I. However,

title I did not go into effect until July 26, 1992

for employers of 25 or more employees, and

January 26, 1994 for employers of 15 to 24 employees. Thus, the DOJ policy letter stated that

"until title I becomes effective for an employer,

the standards for employment practices under

title II will be the same as those under section

504 of the Rehabilitation Act."222

DOJ's Title II Technical Assistance Manual

also states clearly that title II "prohibits all public entities, regardless of size of workforce, from

discriminating in their employment practices

against qualified individuals with disabilities."223

However, guidance provided jointly by EEOC

and DOJ does not clearly explain the distinction

between title I and title II. In their technical assistance document, "Americans with Disabilities

Act: Questions and Answers," EEOC and DOJ

provide the following question and answer:

Q: What employers are covered by title I of the ADA,

and when is the coverage effective?

221 John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Is ler, OCRE, USCCR, June 3, 1998, DRS Response to

Commission's Information Request, p. 10.

222 Joan A. Magagna, Deputy Director, Office on the Americans with Disabilities Act, DOJ, letter to James D. Harris,

Deputy Attorney General, Department of Law and Public

Safety, Office of the Attorney General, Legal Affairs, Trenton, NJ, June 4, 1992, reprinted in 8 Nat'l Disability L. Rep.

(LRP)i 374.

223 DOJ, Title II Technical Assistance Manual, p. 19.

7 0
A: The Title I employment provisions apply to private

employers, State and local governments, employment

agencies, and labor unions. Employers with 25 or

more employees were covered as of July 26, 1992.

Employers with 15 or more employees were covered

two years later, beginning July 26, 1994.224

Nowhere in this statement do the agencies say

that State and local government employment

practices are subject to title II as well as title I.

Further, in the section of the document that provides information on State and local governments, no mention is made of the employment

provisions of title 11.226 Similarly, DOJ's technical assistance document on hiring police officers

mentions neither title I nor title 11.226

In addition, the section-by-section analysis of

the title I regulations in the Americans with

Disabilities Act Handbook is not clear on the applicability of title I to State and local governments. The document states, "all State and local

governments are covered by title II of the ADA

whether or not they are also covered by [title

I]."227 This part of the handbook does not discuss

under what circumstances, if any, public employment falls under title I. The section by section analysis of title II states: "If a covered entity

is not covered by title I, or until it is covered by

title I, subparagraph (b)(2) [of the regulations]

cross-references section 504 standards for what

constitutes employment discrimination."228 From

this it may be inferred that the employment

practices of State and local governments are covered by both title I and title II, yet it is not

clearly explained. Further, in the resource list

attached to the handbook, readers are referred

to EEOC (not DOJ) for questions regarding em224 U.S. Equal Employment Opportunity Commission and

U.S. Department of Justice, Civil Rights Division,

"Americans with Disabilities Act: Questions and Answers,"

(1995) (hereafter cited as EEOC and DOJ, ADA. Questions

and Answers).

225 See ibid.

226 See DOJ, CRD, DRS, "Questions and Answers: The

Americans with Disabilities Act and Hiring Police Officers,"

Mar. 25, 1997.

227 EEOC and DOJ, ADA Handbook, p. 1-23 (emphasis

added).

228 Ibid., p. 11-55.

61

ployment; public employment is not mentioned

in the resource list.229

Title II as a Basis for Public

Employment Discrimination Cases

A 1998 news article, which summarizes the

Eleventh Circuit's recent decision on whether

title II allows an action for employment discrimination,230 states that "while Title I of the

ADA expressly prohibits employment discrimination on the basis of disability, Title II of the

act provides that a qualified individual with a

disability should not be excluded from participation in or denied the benefits of services, programs, or activities of a public entity."231 The

article infers that title II should cover employment discrimination, although it states that it is

"troubling" that Congress did not specifically

mention "discrimination in employment" in title

II itself.232

However, another news article states that

even without explicit language regarding employment discrimination in title II, there is

enough support from the ADA statute, DOJ's

implementing regulations, and caselaw to allow

a cause of action for employment discrimination

under title II. The article took issue with a district court's ruling233 that no employment cause

of action exists under title II. The article maintained, for example, that "civil rights statutes

like the ADA are to be liberally construed, and

there is nothing in the text barring employment

claims under title II."234

229 Ibid., "Resource List," p. 1. Pursuant to Executive Order

12067, EEOC is responsible for developing regulations and

policy guidance, and providing technical assistance with

respect to all of the Federal civil rights statutes that apply

to employment. Therefore, DOJ defers to EEOC for technical assistance on employment policy. DOJ Comments, July

24, 1998, p. 5; Exec. Order No. 12067, 3 C.F.R. 206 (1978).

238 Bledsoe v. Palm Beach City Soil & Water Conservation

Dist., 133 F.3d 816 (11th Cir. 1998).

231 "Title II Covers Employment, Court Says," Americans

with Disabilities Act Manual (BNA), vol. 7, no. 3 (Feb. 12,

1998), pp. 1, 14.

232 Ibid., p. 14.

233 Bledsoe v. Palm Beach City Soil & Water Conservation

Dist., 942 F.Supp. 1439 (S.D. Fla. 1996), rev'd, 133 F.3d 816

(11th Cir. 1998).

234 "No Employment Cause of Action Under ADA Title II,

Court Says," Disability Compliance Manual (LRP), vol. 8,

iss. 14 (Jan. 6, 1997), p. 9.

71
The main issue in title II employment litigation has been whether or not title II even covers

employment discrimination. Other issues also

have emerged in the courts. These include the

intent of Congress in creating title II, DOJ's interpretation of congressional intent in its title II

implementing regulations, and whether the employment practices of State and local entities fall

exclusively under title I of the ADA, which specifically prohibits employment discrimination, or

also under title II of the ADA, which provides that

all programs, services, and activities of public entities are prohibited from any kind of discrimination against persons with disabilities, including

employment discrimination. There also is debate

over when and how each title should be applied in

employment discrimination cases.

In a 1993 case, Petersen v. University of Wisconsin Board of Regents,235 the U.S. District

Court for the Western District of Wisconsin held

that a former faculty member could bring an

employment discrimination action under title II

of the ADA without first exhausting administrative remedies that apply to title I claims. The

defendant alleged that the claim must be filed

first with the EEOC. The court relied on DOJ

regulations interpreting title II, which specifically provide that although Federal agencies are

available to hear claims under the ADA, title II

litigants are not required to file first with these

agencies before bringing suit.236

In the suit, the plaintiff alleged that the defendant terminated his employment in violation of

the ADA "when it refused to renew his employment contract, refused to give him a merit raise,

refused to restore certain employment duties, and

created a hostile work environment because his

physical disability required an accommodation of

an 80 percent appointment."237 Although the

plaintiff could have brought his claim under title I

of the ADA, he chose to bring his claim under title

11.239 The defendant contended that whether the

235 818 F. Supp. 1276 (W.D. Wis. 1993).

238 Id. at 1279-80.

237 Id. at 1276.

238 Id. at 1276-78. Title I covers private and public employers who have 15 or more employees for 20 or more calendar

weeks in the current or preceding year. See 42 U.S.C.

§§ 12111(2), (5) (1994). Title II covers all public entities,

regardless of the number of employees. See id. §§ 12131(1),

12132 (1994); 28 C.F.R. pt. 35, app. A § 35.140 (1997)

62

plaintiff brought his claim under title I or title II

of the ADA, he must comply with the requirement

that individuals exhaust their administrative

remedies before going to court.239

The court noted that subpart F of the regulation governing title II of the act explains in detail the jurisdiction over claims under the ADA

of both EEOC and the Department of Justice.249

In holding that a public employee does not have

to exhaust administrative remedies (with EEOC

or any other Federal agency) before bringing a

claim of employment discrimination under title

II of the ADA in Federal court, the court relied

on DOJ's section-by-section analysis of its regulations, which states clearly that "available administrative channels under title II of the Act

are optional and that plaintiffs may proceed directly to Federal court if they choose to do so."241

(Congress intended to cover the employment practices of all

public entities, regardless of number of employees).

239 The court noted that it was unclear from defendant's

briefs whether it contended that plaintiff was precluded

from bringing a claim under title II, because his claim also

fell under title I. The court disregarded this line of argument, because the defendant provided no support for the

position and "because there is no language in the statute or

regulations that would sustain such a position." The court stated that "the core of defendant's argument is that

whether plaintiff brings his claim under Title I or Title II,

he must comply with the administrative requirements of

Title I." Therefore it addressed only "whether plaintiff must

exhaust his administrative remedies" before bringing suit

under title II. 818 F.Supp. at 1278. Title I adopts the procedures set forth in title VII of the Civil Rights Act of 1964

requiring exhaustion of administrative remedies by filing

charges with the EEOC. 42 U.S.C. § 12117(a) 1994). Title II

adopts the remedies, rights, and procedures of section 504 of

the Rehabilitation Act of 1973, which does not require the

exhaustion of administrative remedies and allows a plaintiff

to file a claim directly with a Federal court. 42 U.S.C. §

12133 (1994). The defendant nevertheless cited a DOJ

regulation implementing title II as authority for imposing

the procedural requirements of title I on all plaintiffs attempting to bring a title II claim against a public entity that

is also subject to the requirements of title I. 818 F.Supp. at

1280. The court noted that 28 C.F.R. § 35.140(b)(1) provides:

"For the purposes of this part, the requirements of Title I of

the Act, as established by the regulations of the Equal Employment Opportunity Commission in 29 C.F.R. part 1630,

apply to employment in any service, program, or activity

conducted by a public entity if that public entity is also subject to the jurisdiction of Title I." Id. (quoting 28 C.F.R. §

35140(b)(1)).

240 818 F. Supp. at 1279 (citing 28 C.F.R. §§ 35.170.178).

241 Id. at 1279-80 (citing 28 C.F.R. pt. 35, app. A, Subpart F

& § 35.172; H.R. Rep. No. 485(11), 101st Cong., 2d Sess., at 98

72
Thus, the defendant's motion to dismiss the

plaintiffs complaint was denied.

One of the most noted cases filed under title II

with respect to employment is Bledsoe v. Palm

Beach Soil and Water Conservation District.242 In

this case, a Federal district court in Florida ruled

that title II did not provide a cause of action for

employment discrimination. However, the U.S.

Court of Appeals for the Eleventh Circuit decided

that the employee could sue his municipal employer for employment discrimination under title

II and reversed the district court's grant of summary judgment for the defendant.243

Bledsoe filed suit against the Palm Beach Soil

and Water Conservation District and Palm

Beach County, alleging that both of these entities were his "employer" within the meaning of

title I of the ADA and the Rehabilitation Act and

had violated his rights protected by the acts. The

plaintiff alleged that he had a disability within

the meaning of the law, that the defendants had

failed to accommodate his disability, and that

the defendants discharged him as a result of the

disability. The court determined that Palm

Beach County was not the plaintiffs employer

and granted summary judgment for the county

on all claims. Because the Palm Beach Soil and

Water Conservation District did not have the

number of employees to effect coverage under

title I of the ADA,244 Bledsoe sought to amend

the complaint to bring his complaint under title

II, and the Soil and Water Conservation District

filed a motion for summary judgment, arguing

that title II of the ADA does not apply to discrimination in employment.245

The district court entered summary judgment

for the Palm Beach Soil and Water Conservation

District on Bledsoe's claims under both the ADA

and the Rehabilitation Act. Bledsoe appealed the

decision. In its review of the case, the Court of

(1990); S. Rep. No. 116, 101st Cong., 1st Sess. at 57-58 (1989);

DOJ, CRD, Title II Technical Assistance Manual, p. 48).

242 942 F.Supp. 1439 (S.D. Fla. 1996), rev'd, 133 F.3d 816

(11th Cir. 1998).

243 Id.

244 The term employer under title I is defined as "a person

engaged in an industry affecting commerce who has 15 or

more employees for each working day in each of 20 or more

calendar weeks in the current preceding calendar year. . . ."

42 U.S.C. § 12111(5) (1994)).

245 Bledsoe, 133 F.3d at 818.

63

Appeals for the Eleventh Circuit held that the

district court "improperly found that title II does

not encompass employment discrimination."246

The court based its holding on the statutory language of title II, the legislative history of the

ADA, DOJ's title II regulations, and a review of

court decisions from across the country. The

court stated:

The statutory language used by Congress in the creation of Title II is brief. Extensive legislative commentary regarding the applicability of Title II to employment discrimination, however is so pervasive as to belie

any contention that Title II does not apply to employment actions. . . .Accordingly, employment coverage is

clear from the language and structure of Title 11.247

The court also noted that while coverage under

title II may not be explicit, Congress "specifically

provided" that DOJ should write regulations implementing title II's prohibition against discrimination,248 and that the Attorney General

should issue regulations "setting forth the forms

of discrimination prohibited. "249

A significant body of caselaw, as well as

DOJ's interpretation of the statute, is in accord

with the Bledsoe court's holding that title II covers employment discrimination.250 For example,

in Holbrook v. City of Alpharetta, the complain246 Id. at 819.

247 Id. at 821-22.

248 Id. at 822 (citing 42 U.S.C. § 12134).

249 Id. at 822 (citing H.R. Report No. 101-485 (III), 101st

Cong. 2d Sess., at 52 (1990), reprinted in 1990 U.S.C.C.A.N.

445, 473). In citing the title II regulations, the court noted that

28 C.F.R. § 35.140 (a) specifically addresses employment discrimination by pubic entities. It also stated that Congress had

not modified the regulations promulgated by the Attorney

General. The court noted that Congress is deemed to know the

executive and judicial gloss given to certain language and thus

adopts the existing interpretation unless it affirmatively acts

to change the meaning. Bledsoe, 133 F.3d at 822 (quoting

Florida Nat'l Guard v. Federal Labor Relations Auth., 699

F.2d 1082, 1087 (11th Cir. 1983)).

258 The Bledsoe opinion is the only circuit court decision to

date directly on point. As the Bledsoe court noted, two prior

decisions implied, but did not hold, that title II creates a

cause of action for employment discrimination. 118 F.3d at

820 (citing Holbrook v. City of Alpharetta, Ga., 113 F.3d,

1522, 1528-29 (11th Cir. 1997); McNely v. Ocala StarBanner, Corp. 99 F.3d 1068, 1073 (11th Cir. 1996), cert denied, 117 S.Ct. 1819 (1997)). For an extensive list of district

court decisions holding that title II encompasses employment discrimination, see Bledsoe, 133 F.3d at 820 n. 4.

7 3

BEST COPY AVAILABLE
ant, a police detective who suffered from diabetes and a lack of visual function in one eye, alleged discrimination on the basis of disability by

the police department's refusal to assign him full

duties and failure to accommodate his disability.

He filed under title II of the ADA. The district

court dismissed the title II claim.251 However,

the Eleventh Circuit Court of Appeals strongly

implied that title II does prohibit employment

discrimination against individuals with disabilities and incorporates the same prohibitions contained under title I regulations. The court held,

however, that because the plaintiff alleged

claims that occurred before July 26, 1992, the

effective date for title II, his title II claims must

be analyzed under the Rehabilitation Act.252

Similarly, in Baxter Ethridge v. State of Alabarna,253 the plaintiff, who was a police officer,

alleged that the Southwest Alabama Police

Academy disqualified him on the ground that he

was unable to perform the minimal qualification

exercises because of a disability in his right

hand. The plaintiff did not specify in his complaint under which title he was proceeding. The

defendant filed a motion for summary judgment

arguing, in part, that the City of Slocumb Police

Department was not subject to the ADA because

it had fewer than the 25 employees required by

title 1.254 The plaintiffs brief opposing summary

judgment argued that he had a valid cause of

action under title II. The district court denied

the defendant's motion for summary judgment,

finding that although a "plain reading of [the

relevant provision in title II] does not reveal

whether it covers employment discrimination,"

the legislative history, DOJ regulations interpreting title II, and the decisions of other courts

make clear that title II prohibits employment

discrimination by public entities on the basis of

disability.255 In another case, Hernandez v. City

251 112 F. 3d 1522, 1528-29 (11th Cir. 1997).

252 Id. at 1522, 1528-29.

253 847 F. Supp. 903, 904-05 (M.D. Ala. 1993).

254 Ethridge at 904-05 (citing 42 U.S.C. § 12115(A) defining

"employer" under title I of the act).

255 Ethridge, 847 F. Supp. 903, 905-06, 908, summ. judgment granted defendant, 860 F.Supp. 808 (M.D. Ala. 1994)

(plaintiff unable to perform "essential function of job and

thus not a "qualified individual with a disability").

64

of Hartford, the court ruled that although a

"plain reading" of title II does not reveal whether

title II covers employment discrimination, the

regulations and the legislative history make it clear that title II prohibits employment discrimination by public entities.256

DOJ also has interpreted title II as covering

employment discrimination. A complaint filed by

a patrol officer alleged that the Denver Police

Department terminated him because of his disability and failed to reassign him to a vacant position for which he was qualified. DOJ found the

employer, the City and County of Denver, violated title II by its failure to provide a reassignment or transfer as a reasonable accommodation

and by terminating him from the police department.257 In its analysis, DOJ concluded that under title II of the ADA, reassignment to a vacant

position is a right of qualified individuals with

disabilities and is permitted as a form of reasonable accommodation. DOJ concluded the city's

failure to consider a reassignment or transfer

option for the police officer violated title II of the

ADA.258 Based on the information provided by

the city, DOJ also concluded the policies and

procedures implemented with regard to police

officers with disabilities no longer able to "carry

out forcible arrest" discriminate against such

officers and, thus, violate title 11.259

256 959 F. Supp. 125;, 132-33 (D. Conn. 1997) (citing Etheridge v. Alabama, 847 F.Supp. 903, 905-06 (M.D. Ala.

1993)).

257 Merrily A. Friedlander, Acting Chief, Coordination and

Review Section, CRD, DOJ, letter to Wellington E. Webb,

Mayor of the City and County of Denver, Colorado, Aug. 22,

1994 (hereafter cited as Friedlander letter).

258 The Department of Justice adopts this legal standard

from EEOC's interpretive guidance on title I of the ADA, 29

C.F.R. pt. 1630, app. A, § 1630.2(o) discussing reasonable

accommodation and the Senate Labor and Human Resources Committee Report on the Americans with Disabilities Act of 1990, which states: "Ulf an employee, because of

disability, can no longer perform the essential functions of

the job that he or she has held, a transfer to another job for

which the person is qualified may prevent the employee

from being out of work and the employer from losing a valuable worker." Friedlander letter (citing S. Rep. No. 116,

101st Cong., 1st Sess., at. 129-130 (1989)).

259 Friedlander letter.

74
Title Policy and Enforcement in

Specffic Contexts

As discussed in the previous chapter, DOJ

develops title II policy primarily through its enforcement and technical assistance activities.

The general provisions of title II, subtitle A, of

the Americans with Disabilities Act are applied

in many contexts. In the area of law enforcement, for example, compliance with title II affects how officers interact with the general public as well as how law enforcement agencies treat

current and potential employees. Courts must

accommodate those with disabilities who enter

them, whether as officers of the court, witnesses,

defendants or members of the observing public.

Title II also influences the investigative procedures State licensing agencies use to certify new

professionals. These and other activities are discussed below.

Law Enforcement and

Emergency Services Law enforcement and emergency services

typically are operated by State and local governments and therefore fall within the ambit of

title II, subtitle A. Title II of the ADA prohibits

discrimination against individuals with disabilities by public entities, including State and local

governments, their agencies, offices, departments, and all other State or locally run or

funded entities.' The statute 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 enI See 42 U.S.C. § 12131(1) (1994).

65

tity, or be subjected to discrimination by any

such entity."2 DOJ's implementing regulations

elaborate upon this nondiscrimination require- ment, stating that a public entity may not

"[a]fford a qualified individual with a disability

the opportunity to participate in or benefit from

the aid, benefit, or service that is not equal to

that afforded others."3 DOJ further stated that

"a public entity may not deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that

are not separate or different, despite the existence of permissibly separate or different programs or activities."4

Because they are both employers and service

agencies, law enforcement and emergency services operations have two major concerns in complying with the ADA: employment policies and

practices (including hiring and termination) and

customer service. How these agencies carry out

their responsibilities under title II depends on

several factors, including staff knowledge of and

training on the ADA, specifically title II; DOJ

efforts to disseminate information about title II;

access to DOJ information sources such as tollfree numbers, responses to information requests,

and Internet access to information about DOJ

and the ADA; and written guidance provided by

DOJ to State and local government agencies.

Disability professionals informed the Commission of a number of instances where law enforce2 Id. § 12132 (1994).

3 28 C.F.R. § 35.130(b)(1)(ii) (1997).

4 Id. § 35.130(b)(2) (1997).

75
ment agencies were not in compliance with title

II. One disability professional indicated that her

office has dealt with a "handful of cases regarding

the lack of an interpreter for an individual who is

deaf in an emergency room situation, in court, or

in police custody."5 Another wrote of a number of

violations of title II by law enforcement agencies.

The agency intervened in several instances to ensure that law enforcement agencies "had policies

and procedures to provide sign language interpreters in questioning a suspect who uses sign

language."8 Her agency also was called upon to

educate several law enforcement agencies about

the right of persons with disabilities to enter restaurants with service dogs.? Another disability

professional wrote about a law enforcement

agency that failed to afford police protection to a

residential care facility housing individuals with

mental illness.8 The Commission also received

information that law enforcement agencies continue to use blanket requirements that exclude

individuals with hearing or vision problems from

law enforcement jobs. The California Department

of Rehabilitation reported:

We receive many calls from individuals who are precluded from participation in the law enforcement selection process because of hearing and vision standards that seem arbitrary, at best. As far as we can

ascertain, there are no discernible safety issues to

justify the widespread use of these exclusions. While

some of the criteria used in determining an individual's fitness for duty as a law enforcement officer

makes sense and certainly takes into consideration

safety issues, other criteria seem based on nothing

more than stereotype and prejudice. Rather than

blanket exemptions, a case by case determination of

eligibility should be instituted for all law enforcement

agencies.9

5 Amy Maes, Director, Client Assistance Program, Michigan

Protection and Advocacy Service, letter to Frederick D. Isler,

Assistant Staff Director, Office of Civil Rights Evaluation

(OCRE), U.S. Commission on Civil Rights (USCCR), Apr. 30,

1998, attachment, p. 8 (hereafter cited as Maes letter).

6 Joyce R. Ringer, Executive Director, Georgia Advocacy

Office, letter to Frederick D. Isler, OCRE, USCCR, Apr. 1,

1998, attachment, p. 5 (hereafter cited as Ringer letter).

7 Ibid.

8 Kayla A. Bower, Executive Director, Oklahoma Disability

Law Center, letter to Frederick D. Isler, Assistant Staff

Director, OCRE, USCCR, Apr. 6, 1998, attachment, p. 4.

9 Michelle Martin, Staff Services Assistant, Department of

Rehabilitation, State of California Health and Welfare

66

Law Enforcement

Discrimination by Law Enforcement Personnel

DOJ has produced a significant amount of

technical assistance materials on discrimination

by law enforcement personnel but has not litigated many title II cases in this area. However,

a review of the caselaw on title II and law enforcement agencies reveals that DOJ has been

involved either as an arnicus curiae or as a

plaintiff in cases dealing with crucial law enforcement issues such as effective communication and accessibility, particularly in the context

of arrest and transport to jail.

One case that illustrates problems in effective

communication between law enforcement officials and individuals with disabilities involved

the arrest of a deaf man in Maryland. In the case

of Rosen v. Montgomery County, Maryland,'°

county police arrested a deaf man for drunk

driving. He alleged in his ADA claim that he was

unable to communicate effectively at the time of

his arrest because the police officers did not provide him with a qualified sign language interpreter." In 1997, the Fourth Circuit Court of

Appeals upheld the lower court's finding that

Rosen's claims under the ADA were not viable.

The court, referring to the language of the statute, found first that:

calling a drunk driving arrest a "program or activity"

of the County, the "essential eligibility requirements"

of which (in this case) are weaving in traffic and being

intoxicated, strikes us as a stretch of the statutory

language and of the underlying legislative intent.12

Moreover, the court stated that:

Agency, letter to Nadja Zalokar, Director, Americans with

Disabilities Act Project, USCCR, May 11, 1998, attachment,

p. 4 (hereafter cited as Martin letter).

10 151 F.3d 154 (4th Cir. 1997).

11 Id. at 156.

12 Id. at 157 (citing Gorman v. Bartch, 925 F. Supp. 653, 655

(W.D.Mo. 1996)). In Gorman, the court stated: "It strains the

statute to talk about the Plaintiffs' eligibility' to be arrested

and taken to jail or to participate in being arrested. . . ." 925

F.Supp. at 655; cf. Torcasio v. Murray, 57 F. 3d 1340, 1347

(4th Cir. 1995) (the "terms 'eligible' and 'participate' imply

voluntariness on the part of an applicant who seeks a benefit from the state; they do not bring to mind prisoners who

are being held against their will."), cert. denied subnom.,

Torcasio v. Angelone, 516 U.S. 1071 (1996).

76
Rosen was in no way "denied the benefits of" his

arrest. As far as the police officers were concerned,

Rosen adequately participated in the various tests

for intoxication, and the officers obtained the information they needed to complete the booking process.

Rosen was simply not "discriminated against" just

because he could not follow everything the officers

were telling him.13

The Rosen case is instructive because it shows

how court rulings have helped to shape standards

and requirements for State and local agencies'

responsibilities under title II on specific issues.

The Rosen court noted, for example, that:

If we assume that the police were required to provide

auxiliary aids at some point in the process, that point

certainly cannot be placed before the arrival at the

stationhouse. The police do not have to get an interpreter before they can stop and shackle a fleeing bank

robber, and they do not have to do so to stop a suspected drunk driver, conduct a field sobriety test, and

make an arrest."

This observation makes logical sense and provides a specific answer to a question not addressed in title II or its regulations.

Title II Litigation

A review of caselaw relating to charges of discrimination against law enforcement agencies

shows that although DOJ has submitted amicus

briefs and has joined in existing litigation, it has

not initiated litigation against a law enforcement

agency under title II. However, judicial decisions

are playing a key role in shaping title II law. For

example, several courts have confronted the issue of whether the arrest and custody of people

with disabilities can be construed as a "benefit,

service, program, or activity" as these terms

were envisioned by Congress in drafting title II.

If so, some courts have reasoned, then people

with disabilities are entitled to accommodation

by State and local law enforcement agencies

during the arrest process.

13 Rosen, 151 F. 3d at 158.

14 Id. The court stated: "Rosen does not assert that better

communication would have changed events one iota, and, in

the end, he is forced to fall back on his claim that he was

'humiliated and embarrassed.' But these are emotions experienced by almost every person stopped and arrested for

drunk driving. . .we cannot find an injury that would suffice

to invoke the ADA's protections." Id.

67

For example, in Gorman v. Bartch,15 a paraplegic who uses a wheelchair claimed that after

he was arrested outside a Kansas City, Missouri,

bar, he was not provided with suitable transportation for someone with mobility impairments.

He had been taken from his wheelchair and tied

to a mesh panel behind the bench on which he

was placed, and fell and was injured during the

ride to the police station. In this case, the plaintiff relied on the nondiscrimination provision of

title II, which states: "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."16 At trial, the

court found, like the Fourth Circuit in Rosen,

that transporting validly arrested individuals

did not constitute a program or activity under

title II as it was envisioned by Congress.17 The

court observed:

to be protected [under title II], Plaintiff had to be a

"qualified individual with a disability," not simply a

person with a disability. The term was specifically

defined by Congress to describe a person who meets

eligibility requirements for the receipt of services or

participation in programs. It strains the statute to

talk about Plaintiffs "eligibility" to be arrested and

taken to jail or to "participate" in being arrested. . .had Plaintiff been arrested because he was handicapped, his arguments would more clearly satisfy the

statutory requirements. . .a person who has been arrested "is not normally thought of as one who would

have occasion 'to. . .meet the essential eligibility requirements' for receipt of or participation in the services, programs or activities of a public entity. The

terms 'eligible' and 'participate' imply voluntariness

on the part of an applicant who seeks a benefit from

the state; they do not bring to mind [criminal suspects] who are being held against their will." . ..these

terms are ill-fitting, at best, in the context of arrested

16 925 F. Supp. 653, 654 (W.D. Mo. 1996), appeal dismissed

without prejudice, 23 F. 3d 1126 (8th Cir. 1997). See also

Torcasio v. Murray, 57 F. 3d 1340, 1347 (4th Cir. 1995)

("The terms 'eligible' and 'participate' imply voluntariness

on the part of an applicant who seeks a benefit from the

State; they do not bring to mind prisoners who are being

held against their will."), cert. denied, 516 U.S. 1071, 133 L.

Ed. 2d 724, 116 S. Ct. 772 (1996).

16 42 U.S.C. § 12132 (1994).

17 925 F. Supp. at 658.

77
individuals, leading to the further conclusion that the

ADA does not apply to the case at bar.°

Gorman and Rosen take the position that

being arrested and taken into custody are not

services, programs, or activities within the

meaning of title II. However, in addressing one

of the plaintiffs arguments, the Gorinan court

cited a DOJ guideline published in 1980 which

stated that when arresting a deaf or hearing- impaired person:

the arresting officer's Miranda warning should be

communicated to the arrestee on a printed form. . .where [there] is no qualified interpreter immediately

available and communication is otherwise inadequate. The form should also advise the arrestee that

the law enforcement agency has an obligation under

Federal law to offer an interpreter to the arrestee

without cost and that the agency will defer interrogation pending the arrival of an interpreter.°

DOJ, in its ainicus brief in the Gorman case,20

argued that: (1) title II's broad application is sufficient in itself to encompass arrests by State and

local law enforcement officers; (2) the legislative

history of title H and the preamble to DOJ's title

II regulations specifically address arrests as one

of the activities of public entities covered by title

II; and (3) the legislative history and the preamble make clear that "Title II is intended to require

police departments to make reasonable modifications to their policies, practices, and procedures,

and to provide training to officers that will avoid

discriminatory arrests of individuals with disabilities."21 DOJ's brief was not sufficient to persuade

the Gorman court, even though it appears that the brief displays a far better understanding of

the purposes and goals of title II than the Gorman

court's decision.22

18 Id. at 655-656 (emphasis added, citations omitted).

18 Id. at 657 (citing 45 Fed. Reg. 37,620, 37,630 (1980) (DOJ

final regulations under Rehabilitation Act)).

20 See Memorandum of the United States as Amicus Curiae,

Gorman v. Bartch, 925 F.Supp. 653 (W.D. Mo. 1996)

(hereafter cited as DOJ Amicus Brief).

21 Id. at 3, Gorman.

22 DOJ also reminded the Gorman court that the preamble

to its title II regulation states simply that "title II applies to

anything a public entity does," Id. at 5 (citing 28 C.F.R. pt.

35, app. A § 35,102) (emphasis added).

68

In a more recent case involving the arrest of a

person with a disability, the court came to the

opposite conclusion. In Hanson v. Sangamon

County Sheriff's Department, the plaintiff, a deaf

man arrested for possession of illegal drugs,

fared much better than the plaintiffs in Rosen

and Gorman. The court addressed the issue of

whether a county sheriffs department violated

title II when it "failed to provide Plaintiff with

any means with which to communicate with

friends and/or relatives in order to post bond."23

The court observed that:

In spite of his inability to use a conventional telephone

and his requests for alternative assistance, the Sangamon County Sheriffs Department failed to provide

Hanson with access to an interpreter, to a text telephone device ("TDD"), or to a TDD directory. Throughout the night, Hanson attempted to notify the officers of

his need for alternative assistance in contacting friends

and/or relatives, but it was to no avail.24

The court found further that the sheriffs office

violated DOJ's regulations requiring communication for people with disabilities that is as effective as communication for those without disabilities.25 In addition, the court found that the sheriffs office took no steps to provide auxiliary aids

and other services such as TDDs and qualified

interpreters.26

The issue of arrest and custody procedures

involving people with disabilities appears to be a

controversial one. Interestingly, the Gorman

court attempted to evaluate carefully the meaning of such words as "program" and "activity,"

while the Hanson court simply took it for

granted that such activities were included under

the broad coverage of the statute with respect to

the actions of public entities. Regardless, DOJ,

like EEOC with controversial title I issues, has

been consistent in defending its position on this

issue. Based on this overview of DOJ's efforts

relating to title II's effect on law enforcement

activities, it appears that the Gorman case is

perhaps the only case involving title II and law

enforcement policies and procedures in which

23 Hanson v. Sangamon County Sheriffs Department, 991

F.Supp.1059, 1061 (C.D. Ill. 1998).

24 Id.

25 Id. at 1063 (citing 28 C.F.R. § 35.160(a) (1997)).

26 Id. (citing 28 C.F.R. § 35.160(b) (1997)).

7 8
DOJ has intervened or filed an amicus brief.

Thus, this is an area where DOJ has done too

little litigation. Nonetheless, to DOJ's credit, the

Gorman ainicus curiae brief displays a more

thoughtful and deeper understanding of title II,

as it relates to law enforcement, than the court

reviewing the case.

Settlement Agreements

DOJ has also successfully resolved law enforcement cases under title II by negotiating

formal settlements. In a 1995 settlement agreement, the Alexandria, Louisiana, Police Department agreed to adopt a policy to provide appropriate auxiliary aids to persons with hearing impairments to provide effective communication

during arrest and other situations.27 Similarly, a

settlement agreement reached in 1996 with the

City of Ferris, Texas, provided for effective

communication in all interactions with the police

department.28 In another complaint about effective communication, DOJ negotiated a settlement agreement with the Wisconsin State Patrol, which allegedly had handled a traffic stop of

a deaf individual improperly. The settlement

agreement required the State patrol to develop

policy and procedures for effective communication, to train its officers on the policy and procedures, and to publicize the new policy.29

Technical Assistance Materials

DOJ is the Federal agency designated to enforce the ADA in the context of law enforcement,

and DOJ has sought to improve understanding

of title II as it relates to law enforcement agencies through development and dissemination of

technical assistance materials. The types of ADA

violations in the law enforcement context addressed by DRS vary. For example, although

DRS does not get many complaints about accessibility issues in the context of law enforcement,

complaints about lack of effective communica27 U.S. Department of Justice (DO,]), Civil Rights Division

(CRD), Disability Rights Section (DRS, Enforcing the ADA

A Status Report Update from the Department of Justice,

January-March 1995, p. 5.

28 DOJ, CRD, DRS, Enforcing the ADA- A Status Report from

the Department of Justice, October-December 1996, p. 5.

28 DOJ, CRD, DRS, Enforcing the ADA. A Status Report

from the Department of Justice, April-June 1997, pp. 6-7.

69

tion during arrests are among the most frequent

law enforcement complaints that DRS receives.

DRS and its grantees have produced much technical assistance to try to educate law enforcement personnel and eliminate such violations."

DOJ's most comprehensive technical assistance document specifically on law enforcement is

13 pages long and is presented in a question and

answer format. It is written in direct, clear language that conveys effectively the terms it defines

and the issues it addresses. The document begins

by asking the question, "What is the ADA?" and

proceeds to discuss how the law affects "virtually

everything that officers and deputies do," including: receiving citizen complaints; interrogating

witnesses; arresting, booking, and holding suspects; operating telephone ("911") emergency centers; providing emergency medical services; and

enforcing laws.31

This technical assistance document defines

the term "disability" under the ADA, and explains that someone stigmatized because of their

association with a person who has a disability is

also protected by the ADA. The document uses

as an example a woman who calls for help from

emergency services because she believes someone may have broken into her home. However,

the police discover that her residence is on a list

of addresses known to be the homes of people

with AIDS. The woman's name is on the list because her son has AIDS. The police refuse to respond to the call because they fear becoming infected with the virus.32 This is an excellent example of how the ADA can play a role in the everyday work of police officers and why it is important for law enforcement professionals to understand the law fully, their rights and responsibilities under it, and how the law is designed to

change the interaction between people with disabilities and those without.

This technical assistance document also addresses common problems faced by law enforcement officers in their daily work, such as instances in which they could misconstrue the actions of individuals. The document includes the

38 Philip Breen, Special Legal Counsel, DRS, CRD, DOJ,

interview in Washington, DC, Apr. 15, 1998, p. 5.

31 DOJ/CRD, "Commonly Asked Questions About the ADA

and Law Enforcement," p. 1.

32 Ibid., p. 2.

79
following examples: (1) a mobility impaired

driver who reaches behind her seat to get her

assistive device for walking when an officer asks

her to step out of the car, which leads the officer

to believe she may be reaching for a weapon; (2)

individuals who are deaf, are hard of hearing, or

have speech disabilities, whom officers erroneously believe are being uncooperative; (3) a deaf

individual who continues to run when an officer

yells "freeze"; and (4) a driver with a neurological difficulty that is causing him to slur his

speech or stagger when he walks is assumed to

be drunk by a police officer. The document provides specific means for ensuring that these incidents are avoided, such as the use of hand signals as an effective way to get the attention of a

deaf individual.33

The document provides other valuable information for law enforcement professionals such

as what procedures to follow in arresting and

transporting an individual who uses a wheelchair, steps officers can take to communicate

more effectively with someone who is blind or

visually impaired, and instructions for providing

emergency medical services to people infected

with HIV. The document also describes law enforcement officers' duties with respect to knowing when a sign language interpreter is required

for a deaf person, how to find sign language interpreters, what a TDD is and how to use one,

and when an officer would use assistive listening

as a communication aid.34

Other issues addressed include architectural

and program accessibility.35 This section of the

document provides information on the extent to

which police stations, jails, and holding cells

must be accessible to persons with mobility disabilities. The document notes that for public entities that cannot afford to make all of the alterations needed to make public buildings fully

accessible, "undue burden" is an acceptable defense. However, the document shows through

examples that, even for towns or cities with limited resources, it is possible to comply with title

II by being creative. For instance, the document

gives the example of a small town police station

33 Ibid., p. 3.

34 Ibid., pp. 6-9.

35Ibid.

that is inaccessible to individuals with mobility

problems. Since the police department cannot

afford to alter all areas of the station because of

insufficient funds, to comply with title II it alters

its lobby and restrooms so that areas of public

use are accessible. In addition, it takes measures

to ensure that some of its daily functions, such

as witness and victim interviews with individuals who have disabilities, are done at other accessible buildings.36

The technical assistance document on title II

and law enforcement also discusses the modifications of law enforcement policies, practices, and

procedures required by the statute. It provides

examples such as a department modifying a rule

that prisoners. cannot eat in their cells to accommodate a diabetic who needs access to carbohydrates and sugar to keep blood sugar at an

appropriate level, or instead of handcuffing arrestees behind their backs, handcuffing them in

front so they can still write or sign.37

In sum, DOJ has addressed a number of important issues related to law enforcement in its

regulations, ainicus briefs, and technical assistance materials. In the technical assistance

documents it has prepared to date, DOJ has provided useful information that can benefit and

expand the knowledge of DOJ legal and investigative staff, and State and local government officials, including police forces, schools, and other

agencies. However, whether or not these documents are adequate to address real problems

existing between law enforcement officers and

people with disabilities in the communities they

serve remains unclear. Comprehensive policy

guidance on specific title II issues (similar to

EEOC's title I guidance) would be an effective

means of conveying important information relating to title II to DOJ investigative staff, State

and local governments and their contractors,

and the general public.

Discrimination Against Law Enforcement

Personnel in Employment

For law enforcement professionals with disabilities, title II of the ADA has meant new protection in their jobs and greater flexibility to do

their jobs. DOJ has recognized the importance of

36 Ibid., p. 10.

37 Ibid., pp. 11-12.

70

0
ensuring that law enforcement personnel and

those seeking employment with law enforcement

agencies have access to information about how

title II of the ADA can affect them, their coworkers, and their supervisors. As with other areas of

title II implementation and enforcement, DOJ

has addressed this issue in litigation, amicus

curiae, investigation, letters of finding, and

technical assistance materials.

Title II Litigation

DOJ recently won a title II case against the

City of Denver in which a former police officer

was awarded $300,000 in damages.38 The police

department was alleged to have discriminated

against a police officer who suffered from a spinal

disc injury. The officer claimed that he did not

receive reasonable accommodation for his disability and was later fired. He argued that the city

violated his rights under title II of the ADA by not

providing a reassignment or transfer. According

to the Disability Compliance Bulletin, DOJ originally sent the mayor of a 6-page letter recommending that the city enter into settlement negotiations because its "failure to reassign [the officer] as a reasonable accommodation. . .and its

termination of him based on his disability constitute violations of title II of the ADA."38

Despite DOJ's request, the case went to trial.

DOJ first filed an ainicus curiae brief on behalf

of the police officer. It later intervened in the

case as a colitigant.40 At trial, the city argued

that for the police officer to be a qualified individual with a disability under the ADA, "he

should be capable of performing the essential

functions of the job of police person with an accommodation, to that disability."41 DOJ argued

that, under the ADA:

38 DOJ, CRD, DRS, Enforcing the ADA: A Status Report

from the Department of Justice, October-December 1996, p. 2

39 "City Must Reassign Injured Officer to Vacant Position,

Jury Says," Disability Compliance Bulletin (LRP), vol. 8, iss.

13 (Dec. 19, 1996), p. 4 (hereafter cited as "City Must Reassign Injured Officer").

49 See United States v. City and County of Denver, 927 F.

Supp. 1396, 1397 (D. Colo. 1996) (U.S. authorized to initiate

enforcement action against employer under ADA after individual filed independent action).

41 "City Must Reassign Injured Officer," p. 4.

71

when an accommodation in an employee's present

position is not possible, reassignment to another position must be considered. . . .the fact that the complainant may not meet the essential functions of a

patrol officer's job does not mean that the City's obligations under the ADA have been met. The statutory

obligation to "reassign" would have no meaning if it

only applied to those individuals who met the essential functions of the job they were occupying.42

The judge in this case decided in favor of the

plaintiff, ruling that the city could not force the

injured police officer to take disability retirement. The court held that the City and County of

Denver's policy or practice barring the reassignment of police officers with disabilities to

vacant positions for which they are qualified,discriminates against qualified individuals with

disabilities. Under the ADA, the city is required

to assign the police officer to a different job as a

reasonable accommodation, provided that this

would not be an undue hardship.43

Technical Assistance Materials

DOJ's technical assistance materials address

the topic of the ADA and employment of law enforcement personnel. For example, the Title II

Technical Assistance Manual states that "title II

prohibits public entities, regardless of size of

workforce, from discriminating in their employment practices against qualified individuals with

disabilities."'" This includes all aspects of employment, including recruitment, hiring, promotion, demotion, layoff, compensation, fringe

benefits, training, etc. The manual further states

that title II of the ADA adopts the employment

standards of title I of the ADA.48

42 Ibid., pp. 4-5.

43 United States v. City and County of Denver, 943 F.Supp.

1304, 1310-14 (D.Colo. 1996) (granting summary judgment

in part, denying summary judgment in part), injunction

denied sub nom., 955 F. Supp. 110 (1997) (injunctive relief

denied because court had not yet identified class of individuals affected by discriminatory policy), request for evidentiary hearing denied, 968 F. Supp. 549 (1997) (backpay with

prejudgment interest and front pay for 2-year period

awarded in lieu of reinstatement).

44 DOJ, CRD, DRS, The Americans with Disabilities Act:

Title II Technical Assistance Manual Covering State and

Local Government Programs and Services (1993), § II4.1000 (hereafter cited as DOJ, Title II Technical Assistance

Manual).

45 Id. § 11-4.3100.
DOJ also has prepared a technical assistance

document on the issue of public employment

that includes hiring practices for law enforcement personnel and the effects of title II. It is

written in question and answer format and provides information on such issues as who is a

qualified individual with a disability, the rationale behind the ADA prohibition against medical

examinations before a conditional offer of employment, and illegal drug use.46

A few questions deal specifically with law enforcement hiring. For example, the document

explains that under the ADA, police departments are able to require job applicants to obtain

medical certifications to perform physical fitness

and agility exams. The document explains that,

as long as the medical certification is limited

only to indicating whether an individual can

safely perform the job and does not contain any

medical information or explanations, it is permissible under the ADA.47

In addition to this document, DOJ has published and disseminated information in the form

of brochures, booklets, videotapes, and trainers'

guides. Some of these documents are intended

for police departments in their hiring of law enforcement personne1.48 Others are designed specifically to inform police officers about recognizing disabilities and the appropriate response

when encountering individuals with disabilities

in law enforcement situations.49

Investigations and Policy Letters

DOJ also has investigated complaints about

employment of law enforcement personnel. One

investigation involved a police officer who injured

48 See DOJ, CRD, DRS, "Questions and Answers: The

Americans with Disabilities Act and Hiring Police Officers,"

Mar. 25, 1997 (hereafter cited as DOJ/CRD, "Questions and

Answers: The ADA and Hiring Police Officers").

47 Ibid., p. 2.

48 Ibid.

49 See DOJ/CRD, "Commonly Asked Questions About the

ADA and Law Enforcement," DOJ/CRD, "Questions and

Answers: ADA and Hiring Police Officers; Police Executive

Research Forum, The Police Response to People with Mental

Illnesses: Including Information on the Americans with Disabilities Act Requirements and Community Policing Approaches, prepared under a grant from the U.S. Department

of Justice (Washington, DC: 1997) (hereafter cited as Police

Executive Research Forum, The Police Response to People

with Mental Illnesses).

his back, was on sick leave, and subsequently was

removed from his post as a patrol officer. DOJ's

response to the complainant was that the employer, a county sheriffs office, was not in violation of the ADA. DOJ's letter explains that the

police officer's injury was a temporary impairment from which the officer had recovered and

thus no longer presented an impairment of a major life activity. For this reason, the complainant

did not have a disability under the ADA.59

In addition, DOJ has addressed the issue of

law enforcement personnel in its policy letters.

For example, in response to a letter from Sen.

Tom Harkin requesting clarification on several

issues, DOJ states:

Under title II of the ADA, a State or local government

must operate its programs and activities so that,

when viewed in their entirety, such programs and

activities are readily accessible to and usable by individuals with disabilities. The concept of "program

access" is discussed in sections 35.149 and 35.150 of

this Department's title II regulation, 28 C.F.R. Part

35, and on pages 19-22 of the title II Technical Assistance Manual (copies enclosed). As stated in section

35.150 (a) (3) of the title II regulation, a title II entity

is not required to take any actions that it can demonstrate would result in a fundamental alteration of its

services, programs, or activities, or in undue financial

and administrative burdens.51

In this letter, DOJ also addresses the specific

issue of using basement space for meetings and

training of police department employees. DOJ

states that the employment provisions of title II

of the ADA apply to this issue and that such

provisions defer to the title I regulations published by the Equal Employment Opportunity

Commission. DOJ notes that in this case the

public entity would be required to provide a reasonable accommodation to qualified individuals

with disabilities, which is to be decided on a

case-by-case basis. One reasonable accommodation would be to relocate the training class to a

89 Steward B. Oneglia, Chief, Coordination and Review Section, CRD, DOJ, letter to complainant, July 28, 1993.

81 W. Lee Rawls, Assistant Attorney General, DOJ, letter to

Tom Harkin, Chairman, Subcommittee on Disability Policy,

Committee on Labor and Human Resources, U.S. Senate,

Feb. 17, 1993, p. 1 (hereafter cited as Rawls letter).

72

82
location that is accessible to employees with mobility imp airments.52

In Valle v. City of Chicago (1997),53 the court

was consistent with DOJ's determination that

the EEOC title I regulations be followed in cases

involving public employees. In this instance, the

court found that the plaintiffs case demonstrated sufficient merit to proceed to trial. Salvador Valle, a candidate for the position of police

officer, argued that his condition, rhabdomyolysis, in which heavy physical exertion causes a

breakdown of muscle tissue, substantially limited him in the major life activity of working.

Valle was hired as a probationary police officer

but was terminated after failing to complete the

threshold requirement that officers be able to

run 1.5 miles within a specified time.54 In denying the employer's motion to dismiss the case,

the court relied on EEOC's regulations to determine that the employee's impairment substantially limited him in the major life activity of

working and that the city's running requirement

was not an "essential function" of the job for

purposes of determining whether the plaintiff

was a "qualified individual with a disability."

The court concluded that having adequately

stated a claim under the ADA, the issue was

whether the specific running requirements of the

training program were job related and consistent

with business necessity.55

Emergency Services

Discrimination by Emergency Services Personnel

Title II Litigation

Title II of the ADA also applies to emergency

services, where courts have generally supported

the plaintiffs. DOJ has had relatively little involvement in litigation in this area. As discussed

in the previous chapter, DOJ has participated in

cases involving equally effective communication

in emergency services. For example, in The Civic

Association of the Deaf of New York City, Inc. v.

Giuliani, individuals with hearing impairments

alleged that a plan to replace city alarm boxes

with a telephone emergency reporting system

52 Ibid., p. 2.

53 982 F. Supp. 560 (N.D., Ill. 1997).

54 Id. at 562.

55 Id. at 563-67 (denying motion to dismiss).

73

that was not accessible to the hearing impaired

violated title II of the ADA.56 The district court

agreed that the city was in violation of the ADA,

but did not require the city to restore boxes that

had already been removed as part of a pilot program in those areas where accessible reporting

alternatives were available.57

Similarly, a group of citizens alleged in Ferguson v. City of Phoenix that the city's 911 system violated the ADA because it required callers

to activate an audible tone to notify the 911 operator that the call was a TDD call and should

be transferred to the system's TDD device.58

However, not all TDDs have the ability to generate such a tone. The court denied the city's request for summary judgment stating that the

city's 911 system denied access to individuals

whose TDDs were incompatible with the system.59 In this case, DOJ had filed an arnicus

brief in the District Court requesting mandatory

changes to the city's 911 system to ensure effective communication. DOJ subsequently filed an

amicus brief in the Court of Appeals arguing

that compensatory damages may be awarded

under title II without showing that the city intentionally discriminated against TDD users.60

In 1997, DOJ also intervened in a lawsuit

against the District of Columbia which alleged

that the District violated title II by failing to respond to 911 calls made by TDD users.61

56 915 F. Supp. 622 (S.D.N.Y. 1996).

57 Id. at 639. In a subsequent proceeding, the city was enjoined to convert all one-button emergency alarm boxes to

two-button boxes that were accessible to hearing impaired

individuals, but the court again refused to enjoin the city to

restore all alarm boxes that were removed. 970 F. Supp. 352

(S.D. N.Y. 1997).

58 931 F. Supp. 688, 689-93 (D. Ariz. 1996).

59 Id. at 694, 699.

60 DOJ, CRD, DRS, Enforcing the ADA. A Status Report

from the Department of Justice, January-March 1997, p. 5.

61 Ibid., p. 3. In granting DOJ's motion for summary judgment, the court held that the District of Columbia violated

title II of the ADA by failing to provide emergency 911 services to callers using TDDs. Miller v. District of Columbia,

983 F. Supp. 205, 205 (D.D.C. 1997). John Wodatch, Chief,

DRS, CRD, DOJ, letter to Frederick D. Isler, Assistant Staff

Director, OCRE, USCCR, July 24, 1998, Comments of the

U.S. Department of Justice, p. 6 (hereafter cited as DOJ

Comments, July 24, 1998).
Technical Assistance Materials

DOJ has prepared one technical assistance

document on the subject of emergency services. In

its document on telephone emergency services,

DOJ states that the ADA requires that telephone

emergency services be directly accessible to individuals who use telecommunications devices for

the deaf (TDDs) or who communicate via computer modem. Direct access is defined as the ability to "directly receive calls from TDD and computer modem users without relying on State telephone relay services or third party services."62 In

this document, DOJ also describes what is meant

by TDD, computer modem communication, and

telephone relay services. In addition, this technical assistance document notes that public safety

agencies are required to provide direct access,

through a standard seven-digit telephone number, to their emergency services.63

The technical assistance document on the ADA

and law enforcement also addresses some issues

related to emergency services. The document

states that police officers are required to ensure

effective communication; however, the use of

communication aids depends on the nature of the

communication required and the needs of the individual requesting such aids. For example, the

ADA requires that consideration should be given

to the expressed choice of the individual with the

disability when determining the purpose for

which the communication aid is to be used. According to the technical assistance document, if

the individual with a hearing impairment expressly requests that a particular family member

not be asked to interpret (a child, for example),

police officers should defer to that request. However, a family member may interpret for a deaf or

hearing-impairedperson, "when the safety or welfare of the public or the person with the disability

is of paramount imp ortance."64

The technical assistance document on the

ADA and law enforcement also notes that in

providing emergency services, persons with

62 DOJ, CRD, DRS, "Commonly Asked Questions Regarding

Telephone Emergency Services," December 1994, p. 2

(hereafter cited as DOJ/CRD, "Questions Regarding Telephone Emergency Services."

63 Ibid., p. 3.

64 DOJ/CRD, "Commonly Asked Questions About the ADA

and Law Enforcement," p. 6.

74

HIV/AIDS should be "treated just like any other

person requiring medical attention."65 The

document notes further that "emergency medical

service providers are required routinely to treat

all persons as if they are infectious for HIV,

Hepatitis B, or other bloodborne pathogens, by

practicing universal precautions," since many

persons may not know they are infected and because individuals are . not required to disclose

such information.66

Settlement Agreements

DOJ also has addressed emergency treatment

of persons who have or may have HIV/AIDS by

negotiating a settlement agreement in at least one case. In 1994, DOJ resolved a complaint against the City . of Philadelphia alleging that

emergency medical technicians (EMTs) had refused to assist an individual with HIV. In the

settlement agreement, the city agreed to provide

sensitivity training to all EMTs and firefighters.

The training also covered precautions to prevent

the transmission of HIV/AIDS. In addition, the

city was required to pay $10,000' in compensatory damages and to provide a written apology to

the individual to whom services were denied.67

Policy Letters

DOJ has addressed the issue of emergency

services, primarily 911 services and telecommunications devices for the deaf, in policy letters. In

a letter to the Rhode Island Governor's Commission on the Handicapped, the Chief of DOJ's

Public Access Section stated that an enhanced

911 system may be used by a State as long as it

meets three requirements. First, nonvoice calls

must be processed as effectively as voice calls are

processed. Second, the system should respond to

nonvoice callers as quickly as it does to voice

callers who dial the local seven-digit number.

Third, nonvoice callers must have direct access

to services provided by the State or local government that are not connected to the enhanced

system.68 DOJ has provided extensive informa65 Ibid., p. 5.

66 Ibid., p. 5.

67 DOJ, Enforcing the ADA. A Status Report from the Department of Justice, April 1994.

68 John L. Wodatch, Chief, Public Access Section, DOJ, letter to Nancy Husted-Jensen, Chairperson and State ADA

84
tion on emergency telephone systems in other

policy letters as wel1.69 For example, in a letter

to Senator Hutchinson, DOJ stated that public

facilities, such as libraries, are not required to

provide a public TDD 'unless the entity provides

four or more public pay phones."

Concerning tornado warning signals, DOJ

stated in a policy letter that if tornado warnings

are provided by State and local governments,

then those systems are covered programs under

title II of the ADA."71 DOJ stated that the correspondent's suggestion of installing a flashing

light as a tornado warning is one possible way of

effectively communicating warning signals. DOJ

noted, however, that "[Ole ADA does not dictate

use of any particular method of complying with

title II's effective communication requirement,

as long as the method chosen ensures effective

communication with persons with disabilities."72

In another letter, DOJ addressed the issue of

shelter and mass care during and after a disaster.

DOJ's letter to the Federal Emergency Management Agency (FEMA) noted that local Emergency

Management Agencies receiving financial assistance through FEMA are subject to title II of the

ADA as are private organizations working with

them, such as the American Red Cross. The letter

states that "[t]he focus of Title II of the ADA and

its implementing regulation is to ensure that, to

the extent that a State or local governmental entity provides programs, services, and activities to

Coordinator, Governor's Commission on the Handicapped,

State of Rhode Island, May 17, 1993, reprinted in 5 Nat'l

Disability Law Reporter q 222.

69 See John R. Dunne, Assistant Attorney General, CRD,

DOJ, letter to Barbara A. Mikulski, U.S. Senate, Nov. 29,

1993; Stewart B. Oneglia, Chief, Coordination and Review

Section, CRD, DOJ, letter to James D. Goerke, Deputy Director, Advisory Commission on State Emergency Communications, Austin, TX, Feb. 9, 1994 (DJ# 204-012-00035);

Stewart B. Oneglia, Chief, Coordination and Review Section,

CRD, DOJ, letter to Robert J. Moldashel, President,

Lakeland Communications, Inc., June 18, 1992 (DJ# 182-

06-00049); John R. Dunne, Assistant Attorney General,

CRD, DOJ, letter to Carl Levin, U.S. Senate, Apr. 20, 1992

(DJ# 192-180-04656).

79 Deval L. Patrick, Assistant Attorney General, CRD, DOJ,

letter to Kay Bailey Hutchinson, U.S. Senate, Dec. 28, 1996.

See 10 NDLR 1 200.

71 John L. Wodatch, Chief, DRS, CRD, DOJ, letter to correspondent, Sept. 17, 1996, reprinted in 8 NDLR i 394.

72 Ibid.

75

BEST COPY AVAILABLE

the public, they are readily accessible to and usable by individuals with disabilities."73

Discrimination Against Emergency Services

Personnel in Employment

Title II Litigation

Court decisions on employment discrimination against emergency services personnel favor

emergency service employers. DOJ has not intervened in these cases or provided much guidance in this area.74 For example, in the case of

Serrano v. County of Arlington,75 the applicant

for a firefighter position had a history of back

injuries and was limited in lifting heavy objects,

yet had no apparent limitations in his day-to-day

work. Although the limit in carrying objects may

have prevented him from performing an important part of the duties of a firefighter, the plaintiff argued that he was considered to be incapable of performing any job requiring heavy labor." However, according to the court:

The County of Arlington did not regard plaintiff as

disabled within the meaning of the ADA merely because it considered him as unsuited for the particular

demands of a firefighter. Moreover, plaintiff is unable

to safely perform the essential functions of a firefighter. Accordingly, the plaintiff cannot establish a

prima facie case under the ADA.77

In Bridges v. City of Bossier, the plaintiff argued

that he was discriminated against because of his

73 Merrily A. Friedlander, Acting Chief, Coordination and

Review Section, CRD, DOJ, letter to Adell Betts, Director,

Office of Equal Rights, Federal Emergency Management

Agency (DJ# 204-012-00058) (hereafter cited as Friedlander

letter).

74 One exception was a complaint filed with DOJ alleging

that the Metro Government of Nashville. and Davidson

County had denied an individual, who is deaf in one ear, a

position as a paramedic based on a policy that categorically

excluded individuals with certain medical conditions, regardless of their abilities to perform job functions. On July

9, 1997, the district court entered a consent order in the

case, United States v. Metro Government of Nashville and

Davidson County, No. 3-97-0671 (M.D. Tenn.). Under the

consent order, Metro hired the individual as a paramedic,

will pay him approximately $54,000 in backpay and compensatory damages, and establishes a hiring policy that will

ensure that individuals are evaluated based on their abilities without applying categorical standards based on medical conditions. DOJ Comments, July 24, 1998, p. 6.

75 986 F.Supp. 992 (E.D. Va. 1997).

7° Id. at 993-97.

77 Id. at 1001.

85
disability, Factor IX deficiency (a form of hemophilia), when the city rejected his application for

employment as a firefighter.78 The city stated

that, although it refused to hire the plaintiff because of his condition, it did not regard him as

having a disability. The court upheld the district

court's decision in favor of the city, stating that

the plaintiff did not show that he had a disability

under the ADA.79 In this case, DOJ filed an anticus brief arguing that the city had regarded the

plaintiff as unable to perform an entire class of

jobs, therefore violating the ADA by assuming

that the plaintiff was substantially limited in his

ability to work.80

A third example is the case of Smith v. City of

Des Moines.81 The city implemented a new rule

that required firefighters holding the rank of captain or below to pass a spirometry test of

lung capacity to determine if firefighters could

wear a self-contained breathing apparatus

(SCBA). Smith, a firefighter for 33 years, passed

the test in 3 out of 4 years. The next year, he

narrowly passed the test and was referred to a

specialist for further testing. Although he passed

later spirometry tests, he scored low on the

stress test. Thus, Smith was placed on sick leave

and referred to other physicians. Because he

passed the spirometry tests, four physicians concluded that he was capable of working as a firefighter. However, the fire department required

Smith to remain on sick leave until April of that

year when he would be 55 years of age and

would be eligible for retirement. After Smith

failed to qualify for disability retirement and did

not file for pension benefits, the city fired him

for failure to meet the physical fitness standards

of the department. Smith brought suit claiming

that his termination violated the ADA and the

Age Discrimination in Employment Act.82 The

court determined that:

fitness and the ability to perform while wearing a

SCBA are undoubtedly job-related and necessary requirements for firefighters. The dispute in this case is

78 92 F. 3d 329, 331 (5th Cir. 1996). 73 Id. at 332-36. 80 DOJ, CRD, DRS, Enforcing the ADA. A Status Report

from the Department of Justice, October 1995-March 1996. 81 99 F.3d 1466 (8th Cir. 1996). 82 Id. at 1467-68.

76

not whether firefighters are physically fit, but how

fitness can be most appropriately measured and how

the city may distinguish those firefighters who are

probably capable of performing the job from those

firefighters who are probably not capable. The city

has not proceeded arbitrarily, but rather has carefully

developed a standard based upon the available medical literature using the best test available for measuring fitness, the stress test. . . . We conclude that

Smith has not met his burden of presenting a triable

issue on the business necessity defense.83

In another case, Gilday v. Mecosta County,84

an emergency medical technician, was allegedly

terminated for rude conduct. He presented evi- dence that under his condition, noninsulindependent diabetes mellitus, stress caused his

blood sugar to fluctuate widely, causing him to

become frustrated and irritable. The plaintiff

argued that a reasonable accommodation to his

disability would have been to transfer him to a

station that was less busy than the one to which

he was assigned, where he would have been better able to follow his treatment plan of oral

medication, monitoring his blood sugar levels,

and following a strict diet and exercise regimen

and thus avoid the behavior for which he was

terminated.85 The district court held that the

plaintiff was not disabled because his diabetes,

when properly treated, did not substantially

limit his ability to work or any other major life

activity.

The Sixth Circuit reversed this ruling, holding that, in accordance with EEOC's interpretive

guidelines, "the determination of whether an

individual is substantially limited in a major life

activity must be made . . . without regard to

mitigating measures such as medicines or assistive or prosthetic devices. "86 The court then determined that the plaintiff had presented sufficient evidence to create material issues of fact as

to whether his uncontrolled diabetes substantially limited his ability to work and thus constituted a disability. The court, therefore, reversed

83 Id. at 1472-73. 84 1997 U.S. App. LEXIS 33306 (6th Cir. Sept. 2, 1997). 85 Id. at *2*3. 86 Id. at *6*7, *15 (quoting 29 C.F.R., pt. 1630, app. A, §

1630.2(h)). The Court held that EEOC's interpretation was

consistent with the text of the statute, the purpose of the

ADA, and the legislative history of the ADA. Id. at *9*14.

86
the district court's summary judgment for the

employer.87

Settlement Agreements

In 1995, DOJ was involved in a formal

agreement to resolve two complaints against

firefighters who were discharged for reasons related to HIV. One complainant was discharged

from his position as a firefighter when officials

learned he was HIV positive. The other complainant was discharged because of his association with the first complainant. In the settlement agreement, Marshall County, Mississippi,

agreed to reinstate the firefighters and paid each

$1,000 in damages. The county also agreed to

provide HIV/AIDS training to all firefighters, to

issue a nondiscrimination policy, to ensure the

two complainants were not harassed, and to

adopt a grievance procedure.88

Also, on April 8, 1998, DOJ entered a settlement agreement with Prince George's County,

Maryland, to provide applicants with disabilities

an equal opportunity to volunteer as emergency

medical technicians. The agreement resolved

complaints filed with DOJ charging that the

Prince George's County, Maryland Police and

Fire Department violated the ADA by refusing to

certify two qualified applicants with hearing impairments. Under the terms of the agreement,

the county no longer will reject automatically

volunteer fire fighter or volunteer rescue technician applicants solely on the basis of disability;

will evaluate, on an individual basis, every applicant's ability to perform the essential functions of the position; will provide training to all

personnel who participate in making volunteer

application decisions and to medical personnel

hired to evaluate applicants; and will make an

offer of reevaluation of the complainants' application for active membership.89

Summary

Overall, it appears that DOJ is adequately

implementing and enforcing title II, subtitle A,

of the ADA. DOJ has responded well to indi87 Id. at *16*20.

88 DOJ, CRD, DRS, Enforcing the ADA. A Status Report

Update from the Department of Justice, January-March

1995, p. 5.

89 DOJ Comments, July 24, 1998, p. 6.

77

viduals' and communities' requests for clarification and information about the ADA regarding

law enforcement personnel procedures and the

treatment of individuals with disabilities by law

enforcement officials. In its policy letters, DOJ

has addressed competently court decisions and

has produced additional material in regard to

those judicial issues.

DOJ has issued technical assistance materials

to law enforcement and emergency service organizations about the applicability of the ADA.

These documents have the potential to provide a

great deal of information and understanding

about the ADA to a great many people. For example, in The Americans with Disabilities Act Title II

Technical Assistance Manual, DOJ provides general information on the ADA and specific information on issues such as public employment, accessibility, and effective communication.

However, as the Federal agency designated to

address ADA violations by State and local government entities, DOJ has conducted surprisingly little litigation in this area to establish

binding legal precedent.80 In addition, certain

topics have not been sufficiently addressed by

DOJ. One such issue is alcoholism among law

enforcement personnel. Alcoholism is a disease

covered under the ADA. Perhaps policy guidance

by DOJ within the ambit of law enforcement and

emergency service departments would distinguish alcoholism from current drug use, and better inform hiring and personnel policies and contribute to alleviation of discrimination against

such employees. In addition, the issue of reasonable accommodation must be addressed. Public

entities, even after the passage of the ADA, are

not making much progress in adapting working

conditions to those who have disabilities and are

qualified to work. DOJ should develop and publish additional assistance for title II implementation which would promote better hiring policies

90 According to DOJ, "DRS believes [litigation] is an essential tool for credible and efficient enforcement to prevent

discrimination against persons with disabilities." DOJ

Comments, July 24, 1998, p. 7. However, DOJ is required,

under the title II regulation and Executive Order 12988, to

attempt to reach a voluntary resolution of complaints prior

to commencing litigation. A decision to litigate is made only

where the DRS and individuals or entities in violation of the

ADA cannot agree on appropriate remedies or interpretation

of the law. Ibid. See 28 C.F.R. § 35.174 (1997); Exec. Order

No. 12983, 3 C.F.R. 158 (1997).
and better treatment of workers who acquire a

disability during employment.

Although DOJ has written a few amici curiae

briefs, it has not actively been involved in addressing many of these issues in the courts. Organizations such as the National Association of

Protection and Advocacy Systems have criticized

DOJ for not initiating enough litigation.91 Others

have noted that DOJ is more likely to settle

cases than litigate cases.92 DOJ has stated that

situations do not always develop into lawsuits,

and resolution can be achieved in other ways,

such as settlement agreements. The cases DOJ

is mostly likely to litigate are those with disputed facts or questions about areas of ADA law

that are not well established."

Prisons

Prisons are one of the areas in which DRS

has been actively engaged in title II implementation, compliance, and enforcement. DRS receives a large volume of complaints from prisoners," accounting for approximately 25 percent of

all complaints received.95 Other information provided to the Commission by DRS staff indicates

that in 1997, DRS completed investigations of

261 complaints filed by disabled inmates. Also,

as of January 1998, 695 of 1,240 open title II

complaints involved prisons.96

91 Curtis L. Decker, Executive Director; Gary Gross, Director of Legal Services; and Paula Rubin, Staff Attorney; National Association of Protection and Advocacy Systems, interview in Washington, DC, Nov. 12, 1997, p. 4. See also

Imparato interview, p. 7.

92 Andrew Imparato, General Counsel and Director of Policy,

National Council on Disability, interview in Washington,

DC, Oct. 20, 1997, p. 7.

93 Breen interview, p. 5.

94 Staff, DRS, CRD, DOJ, interview in Washington, DC,

Nov. 6, 1997, p. 2 (hereafter cited as DRS Staff November

1997 interview), statement of John Wodatch, Chief. See also

Renee Wohlenhaus, Deputy Section Chief, DRS, CRD, DOJ,

interview in Washington, DC, Apr. 14, 1998, p. 3; and Nichol

interview, p. 3.

95 Robb Wolfson, Investigator, DRS, CRD, DOJ, interview in

Washington, DC, Apr. 15, 1998, p. 2.

96 John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick

D. Isler, Assistant Staff Director, OCRE, USCCR, June 3,

1998, DRS Response to Commission's Information Request,

p. 10. Other entities also receive ADA complaints from prisoners. For instance, the Michigan Protection and Advocacy

Service has had "several calls regarding prisoners with men78

The prison population in the United States is

growing and aging. At the end of June 1996,

more than 1 million persons were incarcerated

in State prisons. In addition, almost 600,000

persons were imprisoned in local jails. The

prison population has risen consistently over the

past decade, and the total number of prisoners

under Federal, State, and local jurisdiction increased by 5.3 percent from 1995 to 1996.97 The

average age of prison inmates is rising. Thus,

since older inmates are more likely than younger

inmates to be disabled or become disabled and

require special accommodations, the number of

prisoners with disabilities is likely increasing.98

There are few overall statistics on the number of individuals with disabilities in the Nation's prisons. DOJ recently reported that of the

131,632 inmates in the California prison system,

345 used wheelchairs due to a permanent disability; 650 used canes, prostheses, or walkers;

141 were hearing impaired despite use of a hearing aid; and 218 had visual impairments

that were not corrected to 20/200 with corrective

lenses.99 A 1993 California Corrections Department study reported that 11 percent of male and

15 percent of female prison inmates suffered

from severe mental disorders.'" According to the

National Institute of Justice, between 6 and 13

percent of the Nation's inmate population

(between 640,000 and 800,000 inmates) may

have a mental disability.'°'

Some prisons are not accessible to prisoners

and visitors with disabilities because of the age

of the prisons themselves.'" Inmates with distal illness being denied medication." Maes letter, attachment, p. 8.

97 DOJ, Bureau of Justice Statistics, "Prison and Jail Inmates at Midyear 1996," Bureau of Justice Statistics Bulletin (January 1997), p. 1.

98 Ira P. Robbins, "George Bush's America Meets Dante's

Inferno: The Americans with Disabilities Act in Prison,"

Yale Law and Policy Review, vol. 15 (1996), p. 56 (hereafter

cited as Robbins, The ADA in Prison). Robbins notes that

the rise in prisoner age corresponds with the spread of mandatory minimum sentencing policies. Ibid.

99 See Brief for the United States As Intervenor and Amicus

Curiae at 42, 124 F.3d 1019 (9th Cir. 1997), citing ER 73-74.

100 See Robbins, "The ADA in Prison," p. 59, n. 47.

101 See NIJ, "Mental Disabilities and Corrections," p. 1.

102 Allison J. Nichol, Deputy Chief, DSR, CRD, DOJ, interview in Washington, DC, Apr. 14, 1998, p. 3 (hereafter cited

as Nichol interview).

88
abilities are prone to having their personal

safety jeopardized by fellow inmates, architectural hazards, and inability to evacuate during

an emergency. For these and other reasons, they

may be particularly vulnerable to discrimination

and oppression within the penal system.' °3

Although a wide variety of disabilities is represented among the Nation's prison population,

elderly prisoners, and those with cognitive deficits, hearing impairments, and HIV present particular difficulties and challenges that require

accommodations.104 For example, deaf and hard

of hearing inmates have distinct problems, such

as not hearing announcements or emergency

warnings. Despite the apparent "invisibility" of

hearing deficits, prison guards notice deaf inmates' lack of response to commands, and fellow

inmates may take advantage of their vulnerability to physical abuse. Inmates with

HIV/AIDS require special considerations. As one

scholar has noted:

Accommodation of HIV-infected prisoners creates a

range of issues, including mainstreaming, protection

from physical violence and institutional staff prejudice, and providing for their extensive medical needs:

These needs regularly clash with the peculiar threat

that HIV and AIDS present in a prison setting. Sexual assault is commonplace among inmates, and with

HIV infections already thriving, the potential for

transmission of the disease is considerable. The conflict centers on the struggle between equal protection

103 See Elaine Gardner, "The Legal Rights of Inmates with

Physical Disabilities," St. Louis University Public Law Review, vol. 14 (1994), p. 175 (hereafter cited as Gardner, "The

Legal Rights of Inmates;" see also Robbins, The ADA in

Prison, p. 50.

1°4 See Robbins, "The ADA in Prison," pp. 62-63, citing Peter

Baker, "Assembly Ratifies Allen's Assault on Violent Crime:

Work on Paying for Parole Plan Is Put on Hold Until Next

Year," The Washington Post, Oct. 1, 1994, at Cl; NIJ,

"Mental Disabilities and Corrections," p. 2; Paula N. Rubin

and Susan W. Mc Campbell, "The Americans With Disabilities Act and Criminal Justice: Providing Inmate Services,"

DOJ, Office of Justice Programs, National Institute of Justice, July 1994, p. 2 (hereafter cited as NIJ, "Providing Inmate Services"). The frequent invisibility of mental disabilities, however, distinguishes them from "visible physical

disabilities and becomes an additional obstacle to successful

legal challenges." Robbins, "The ADA in Prison," p. 58. Additional challenges faced by deaf and hearing-impaired inmates during incarceration are addressed in Bonnie P.

Tucker, "Deaf Prison Inmates: Time to Be Heard," Loyola of

Los Angeles Law Review, vol. 22 (1988), p. 1, as cited in Robbins, "The ADA in Prison," p. 63.

79

versus special needs, and on prisoners' rights versus

deference to prison authorities.'05

At the end of 1995, 23,404 inmates (or 2.4 percent) in State correctional facilities were HIV

positive. Twenty-one percent of these individuals

were confirmed AIDS cases. Between 1991 and

1995, about one in three of the Nation's inmate

deaths were due to AIDS-related causes.108

Applicability of Title II

The applicability of title II to prisons and prisoners has generated considerable debate. DOJ

has indicated consistently that title II's nondiscrimination protections extend to prisoners. The

implementing regulations prepared by DOJ for

title II of the ADA "cover all services, programs, or

activities provided or made available by public

entities."107 The title II regulations also specifically list correctional institutions among the public entities under DOJ's jurisdiction.108 In its amicus briefs, policy letters, and technical assistance

materials, DOJ has clearly and consistently

stated that prisoners in correctional facilities are

protected under title II of the ADA, since such

facilities are public entities. For instance, DOJ's

Title II Technical Assistance Manual includes accessibility standards for residential units in jails

and other correctional institutions.109

However, although the title II regulations

specifically state that correctional institutions

are included under the jurisdiction of the Department of Justice,110 neither the statute nor

the title II regulations clearly state that prison-.

ers are protected by the ADA. As a result, there was disagreement among the courts as to

105 Robbins, "The ADA in Prison," p. 61.

106 See Laura Maruschak, "HIV in Prisons and Jails," DOJ,

Bureau of Justice Statistics, Office of Justice Programs,

1995," August 1997, p. 1.

107 28 C.F.R. § 35.102(a) (1997). See Gardner, "The Legal

Rights of Inmates," p. 178 ("It is manifest that correctional

facilities are among these entities governed by Title II of the

ADA and its regulation.") (citing section-by-section analysis,

28 C.F.R. pt. 35, app. A). DOJ recognized the ADA's applicability to jails and prisons, and incorporated reference to

correctional facilities when it drafted the title II regulations.

See also Robbins, "The ADA in Prison," p. 85.

108 28 C.F.R. § 35.190(b)(6) (1997).

1°9 DOJ, Title II Technical Assistance Manual, § H6.3300(6).

110 See 28 C.F.R. § 35.190(b)(6) (1997).

89
whether prisons and jails are covered under title

II and whether incarcerated individuals are part

of the ADA's protected class. Some courts ruled

that the ADA does apply to State and local correctional facilities and the prisoners incarcerated in them, and other courts held that it does

not. The split among the courts on this issue

may be best observed among the Federal circuits. For instance, in 1997 the Ninth Circuit

determined that Congress intended to include

corrections administration, prisons and their

programs, and inmates when developing the

language of the ADA.111 The Third Circuit and

Seventh Circuit also held that the ADA applies

to State correctional facilities.112 In contrast, the

Tenth Circuit held that the ADA does not apply

to a prisoner's claim that he was denied prison

employment opportunities because of his disability.113 Part of the controversy surrounding

the relevance of the ADA to incarcerated individuals relates to differing views on the extent to

which "legal rights" should be afforded to convicted criminals.114 In addition, according to the

chief judge of the Seventh Circuit Court of Appeals, even if persons within public jails or prisons who are not inmates (e.g., employees) are

protected by the ADA, "it would not necessarily

follow" that those correctional facilities must

modify their programs to promote the accessibility of prisoners with disabilities.115

In June 1998, the U.S. Supreme Court ended

the debate on this issue in its ruling in Penn.sylIn See Armstrong v. Wilson, 124 F. 3d 1019, 1023 (9th Cir.

1997) ("we conclude that the plain language of the

ADA...and our prior interpretations of that analysis support

application of the [ADA] to State prisons").

112 Yeskey v. Pennsylvania Dep't of Corrections, 118 F.3d

168, 170-74 (3rd Cir. 1997); Crawford v. Indiana Dep't of

Corrections, 115 F.3d 481, 485-87 (7th Cir. 1997).

"3 White v. Colorado, 82 F.3d 364, 367 (10th Cir. 1996); see

also Torcasio v. Murray, 57 F.3d 1340, 1344-52 (4th Cir. 1995)

(holding that ADA's applicability to prisons is not clearly established, but strongly hinting that it is inapplicable).

1" Robbins, "The ADA in Prison," p. 85. See Gardner, "The

Legal Rights of Inmates," pp. 199-209 for discussion of constitutional and other Federal statutory rights and protections granted to all individuals, including prison inmates

with disabilities.

113 See Bryant v. Madigan, 84 F. 3d 246, 248 (7th Cir. 1996)

(applicability of ADA to prison inmates questioned, but expressly left open; prisoner's complaint not covered by ADA

even if it were applicable); see also Robbins, "The ADA in

Prison," p. 85.

vania Department of Corrections v. Yeskey.116

The Pennsylvania Department of Corrections

had denied inmate Yeskey, who was hypertensive, the opportunity to participate in a motivational boot camp program that would have

shortened the length of his sentence.117 The

Middle District Court of Pennsylvania dismissed

Yeskey's 1994 complaint alleging a violation of

his rights under the ADA and held that the ADA

did not apply to State prisons.118 However, in

July 1997, the Third Circuit Court of Appeals

reversed the lower court's opinion and ruled that

the language of the ADA and DOJ's title II implementing regulations were "all encompassing"

and sufficiently broad to find that State prisons

and their programs, services, and activities, including a boot camp program, are covered by the

statute.119 The Third Circuit also held that inmates with disabilities were protected by the

ADA.120 The Supreme Court unanimously affirmed the decision of the Third Circuit and held

that the plain language of title II extends to

prison inmates. Writing for the Court, Justice

Scalia stated:

Petitioners contend that the phrase "benefits of the

services, programs, or activities of a public entity" [in

the ADA statute] creates an ambiguity, because state

prisons do not provide prisoners with "benefits" of

"programs, services, or activities" as those terms are

ordinarily understood. We disagree. Modern prisons

provide inmates with many recreational "activities,"

medical "services," and educational and vocational

"programs," all of which at least theoretically

"benefit" the prisoners (and any of which disabled

prisoners could be "excluded from participation in").

Indeed, the statute establishing the Motivational

Boot Camp at issue in this very case refers to it as a

"program." The text of the ADA provides no basis for

116 Pennsylvania Dep't of Corrections v. Yeskey, 118 S.Ct.

1952 (1998), aft 118 F.3d at 168 (3rd Cir. 1997).

117 118 S.Ct. at 1954..

118 118 F.3d at 169; "Court to Decide Whether Prisoners

Covered by Key Law," accessed at http://dynamic.webpoint.

com/news/oso/story/0,1024,50005449,00.html, p. 1; "Supreme

Court to Decide Whether State Prisoners Covered Under

ADA," Disability Compliance Bulletin, vol. 11, iss. 4 (Feb.

12, 1998), p. 7 (hereafter cited as "Supreme Court to Decide

Whether State Prisoners Covered Under ADA").

113 118 F.3d at 169-70 (citing 42 U.S.C. § 12131(1)(B));

"Supreme Court to Decide Whether State Prisoners Covered

Under ADA," p. 7.

120 118 F.3d at 171-75.

80

so
distinguishing these programs, services, and activities from those provided by public entities that are

not prisons.12'

The Court held that the term "qualified individual with a disability" in the statute unambiguously applied to State prisoners.122 The Court

declined to address whether application of the

ADA to State prisons is a constitutional exercise

of Congress' power under either the commerce

clause or section 5 of the 14th amendment because the petitioners failed to raise this argument before either the district court or the circuit court.123

Provisions Facilitating Access of

Prisoners with Disabilities to Programs

DOJ has taken the position in its regulations,

litigation, and atnicus curiae briefs that it is

authorized to ensure that prisoners with disabilities are not denied access to the services,

programs, and activities available to prisoners

without disabilities.124 The ADA and its implementing regulations state explicitly that a public

entity's obligations are to "qualified" individuals

with disabilities. To be "qualified" for a program,

an inmate must meet the "essential eligibility

requirements."125 However, some eligibility cri121 118 S.Ct. at 1955 (citations omitted).

122 Id. In response to the recent Supreme Court ruling that

the ADA covers prison inmates, Sens. Strom Thurmond and

Jesse Helms introduced a bill July 7 to exempt State and

local prisons from ADA compliance. The State and Local

Prison Relief Act (S. 2266) would amend title II of the ADA

and section 504(b) of the Rehabilitation Act to exclude from

liability any operations relating to State and local prisons.

The disability community is extremely concerned about any

attempt to amend the ADA. Stephen F. Gold, a Philadelphia

attorney who has represented plaintiffs in several title II

cases in Pennsylvania, noted that prisons currently make

accommodations for inmates' religion, a policy that has not

harmed the facilities' operations. He also noted that Strom

Thurmond should be asked if prisons also should discriminate based on race or sex. See "Proposed Legislation Would

Exempt Prisons From ADA," BNA's Americans with Disabilities Act Manual, vol. 7, no. 14 (July 23, 1998), p. 84.

123 118 S.Ct. at 1956.

124 See Armstrong v. Wilson, 942 F. Supp. 1252, 1254, 1259

(N.D. Cal. 1996) (expansive language of the ADA, pursuant

to congressional delegation of authority to establish that

ADA applies to State correctional institutions).

128 "Prisoners' Rights Under the ADA," accessed at http://

wco.com/-aerick/ada.htm, p. 1. See NIJ, "Providing Inmate

Services," p. 1.

81

BEST COPY AVAILABLE

teria are illegitimate. For example, a program

eligibility requirement that excludes inmates on

psychotropic medications may violate the ADA.

On the other hand, a requirement that such inmates "be stable while on medication" is a legitimate rule for program participation. Further,

a high security inmate cannot file a complaint of

discrimination under title II of the ADA if he or

she is not offered a program provided to lower

security inmates.126

Prison inmates with disabilities, similar to

others protected by title II of the ADA, are entitled to information that effectively describes

public entities' programs and activities. To comply with title H, State and local correctional facilities must provide disabled inmates with:

services in the most integrated setting appropriate to the disabled inmates' needs, auxiliary aids

for hearing and visually impaired inmates, a

qualified sign language interpreter and access to

a TDD system for hard of hearing inmates, and

measures that make programs "usable" and

"readily accessible" by disabled inmates.127

Although inmates with mental disabilities

must not be excluded from programs and services available to other inmates, correctional

agencies are not required under the ADA to facilitate "program access" for inmates who could

jeopardize the safety of others, unless the risks

can be eliminated by reasonable accommodations. When an inmate in a public correctional

facility, attempting to participate in a particular

activity, directly threatens the well-being of others, he or she is considered not "qualified" for

such an activity.128

The definition of auxiliary aids and services

for persons with visual and hearing deficits is

extensive. Some auxiliary aids and services for

126 "Prisoners' Rights Under the ADA," accessed at http://

wco.com/-aerick/ada.htm, p. 1.

127 Gardner, "The Legal Rights of Inmates," pp. 179-80.

DOJ's regulations require that each service, program, or

activity of a public entity, when viewed in its entirety, be

"readily accessible to and usable by individuals with disabilities." 28 C.F.R. § 35.150(a) (1997). TDDs (telecommunication

devices for the deaf) are relatively inexpensive devices that

enable a hearing-impaired person to use a telephone by

typing and receiving electronic messages over telephone

lines to another individual using a TDD. Gardner, "The Legal Rights of Inmates," p. 182.

128 See NIJ, "Providing Inmate Services," p. 2.

91
hearing impaired individuals include hearing

aids, note takers, and transcription services.

Auxiliary aids and services for visually impaired

individuals include mobility aids such as canes,

readers, and Brailled materials.129 Correctional

facilities covered by title H must provide these

sensory devices (and/or others similar) unless

this obligation causes "fundamental alteration"

of programs and services or creates undue burden.130 When determining the appropriate auxiliary provisions, public entities, including penal

institutions, must generally give preference to

disabled individuals' requests.131 The "deference"

to a disabled individual's requests is critical because of the variety of types and severity levels

of disabilities, the many types of available devices, and the fact that certain auxiliary aids are

effective for some individuals with a particular

disability, yet not for others.

The ADA title II regulations define a

"qualified" interpreter as one who is able to

"interpret effectively, accurately, and impartially

both receptively and expressively, using any

necessary specialized vocabulary."132 Prisbns

have frequently relied on other inmates to act as

interpreters and facilitate communication with

deaf inmates.133 One particular obstacle is that

the privacy available to nondisabled inmates

during medical or counseling sessions, for instance, is relinquished when a deaf inmate needs

a hearing peer to interpret. Courts have heard

cases where interpreters have done "more harm

than good," by leaking confidential information

and threatening the hearing-impaired inmates

whom they were supposed to assist.134

129 Gardner, "The Legal Rights of Inmates," pp. 180, 183. See

28 C.F.R. § 35.104 (1997) (definition of auxiliary aids and

services). 139 28 C.F.R. § 35.164 (1997). 131 Gardner, "The Legal Rights of Inmates," pp. 184, 185.

DOJ's regulation states: "In determining what type of auxiliary aid and service is necessary, a public entity shall give

primary consideration to the requests of the individual with

disabilities." 28 C.F.R. § 35.160(b)(2) (1997). 132 28 C.F.R. § 35.104 (1997). 133 See Gardner, "The Legal Rights of Inmates," p. 182. 134 Gardner, "The Legal Rights of Inmates," p. 182 (citing

Boner v. Lewis, 857 F.2d 559, 561-63 (9th Cir. 1988)

(information regarding nature of deaf inmate's crime leaked

to general prison population by inmate interpreter); Complaint in Du Quin v. Polk Correctional Institution, Complaint

Nos. 04-91-4012, 04-91-4013 (U.S. Dep't. of Educ., Office

Architectural Barriers in Prisons

Many of the Nation's existing jails and prisons were built for a younger, abler population.135

Because of the need to accommodate persons

with disabilities in correctional and other public

facilities, the Architectural and Transportation

Barriers Compliance Board (Access Board) revised its Americans with Disabilities Act Accessibility Guidelines to include correctional facilities and other entities covered by title II of the

ADA.136 In June 1994, the Access Board published an interim rule adding provisions specifically applicable to State and local government

facilities to its ADA accessibility guidelines, and

DOJ published a notice of proposed rulemaking

to adopt those provisions as standards. The

guidelines became effective on April 13, 1998.137

They are intended to assist DOJ in establishing

accessibility standards for constructing new and

modifying existing State and local facilities covered by title II of the ADA. The guidelines address the standards for building detention and

correctional facilities to accommodate disabled

inmates, staff, and visitors.135 Until DOJ adopts

the guidelines as standards, the guidelines "are

advisory only and are not to be construed as requirements."139

The guidelines for detention and correctional

facilities apply to jails, holding cells in police stations, prisons, juvenile detention centers, reformatories, and other institutions where occupants

are under some degree of restraint or restriction

for security reasons. In general, new and altered

correctional facilities operated by nonfederal

public entities must have at least 2 percent, but

for Civil Rts., Region IV) (inmate interpreter alleged to have

extorted cigarettes and food from a deaf inmate in exchange

for accurate interpreting)). 135 Robbins, "The ADA in Prison," p. 56. 138 Americans with Disabilities Act Accessibility Guidelines

for Buildings and Facilities; State and Local Government

Facilities, 63 Fed. Reg. 2000, 2,009-2,013 (1998) (to be codified at 36 C.F.R. part 1191, app. A §§ 12.1-12.6). In addition

to addressing correctional facilities, the 1998 guidelines

propose requirements for transportation facilities and judicial, legislative, and regulatory facilities. See 63 Fed. Reg.

2,000, 2,042-45 (1998). 137 Id. at 2,000-2,001. See also 59 Fed. Reg. 31,818: (1994)

(Notice of Proposed Rulemaking). 138 Id. at 2,000, 2,045-2,048, 2,056-2,058 (1998). 139 Id. at 2,000, 2,001 (1998).

82

92
not less than one "accessible" cell, as well as at

least one "housing or holding" cell that is fully

equipped with audible emergency warning systems or permanently installed telephones. The

correctional facility's cells deemed "accessible"

must be distributed across different levels of security and "holding classifications" (e.g.,

male/female, adult/juvenile). Additional accessibility requirements pertain to entrances, security systems, and visiting areas.140

Public entities need not remove physical barriers in all existing buildings, however, as long

as they make their programs accessible to persons who are unable to use an inaccessible existing facility. Also, public entities are not required to take any action that would result in a

"fundamental alteration" in the nature of the

service, program, or activity or in "undue financial or administrative burdens." This concept of

"fundamental alteration" and "undue burdens"

only applies under title II's requirements of program access in existing facilities and not under

title II's requirements for new construction and

alterations. Under title II's new construction and

alterations requirement, public entities must

ensure that newly constructed buildings and facilities are free of architectural and communication barriers that restrict access or use by persons with disabilities. When a public entity undertakes alterations to an existing building, it

also must ensure that the altered portions are

accessible.141

Some prison officials have argued that costs

faced by State and local government entities,

such as departments of corrections, to comply

with ADA's program access requirements can be

prohibitive.142 Because of their concerns about

managing costs and dispersing disabled inmates

efficiently throughout a State, some corrections

departments have created centralized facilities

140 Id. at 2,046-2,048, 2,056-58 (1998).

141 DOJ Comments, July 24, 1998, p. 8. See 28 C.F.R.

§§ 35.150, 35.151 (1997).

142 Robbins, "The ADA in Prison," p. 56. When Coleman v.

Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995) was pending in

the Eastern District Court of California, the head of the

State corrections department's health care unit, Kyle

McKinsey, estimated that it would cost $300 million annually to improve mental health services for mentally ill inmates. Robbins, "The ADA in Prison," p. 60.

83

for this population.143 This practice reflects the

larger struggle of public entities to preserve

their financial futures while complying with

ADA requirements. In a letter to the executive

director of the Association of State Correctional

Facilities, DOJ stated that the ADA generally

requires reasonable modifications to a covered

entity's policies, practices, or procedures when

such modifications are essential to eliminate discrimination based on. disability. However, program modifications are not required if they

cause undue burden and/or "fundamentally alter" the nature of a public entity's service, program, or activity.144 As long as the modifications

effectively eliminate discrimination, the corrections department has complied with its title II

obligations for program access. Overall, although

the ADA requires correctional institutions to

make modifications to ensure that inmates are

not discriminated against due to their disabilities, the statute does not prevent the essential

changes from being made in a cost-effective and

efficient manner.145

Professional Licensing

Statutory and Regulatory Framework

In deciding issues of character and fitness to

practice, professional licensing boards, including

State bar examiners, historically have asked applicants about history of or treatment for mental

illness and substance abuse, as well as other

143 Ibid., p. 108.

144 Deval Patrick, Assistant Attorney General, CRD, DOJ,

letter to George M. Camp, Executive Director, Association of

State Correctional Facilities, Apr. 11, 1995 (hereafter cited

as Patrick letter) reprinted in 7 Nat'l Disability L. Rep. 1

425., pp. 2-3; 28 C.F.R. § 35.150(a)(3), 164 (1997). Corrections administrators may be concerned that security could

be compromised when complying with ADA mandates to

provide disabled inmates with auxiliary aids and services.

Gardner, "The Legal Rights of Inmates," pp. 195-96.

145 Patrick letter, p. 2. However, the defense of undue financial burden can be difficult for corrections departments to

prove, especially since many auxiliary aids and equipment

can be inexpensive and used repeatedly by multiple inmates.

Administrative, rather than financial burdens, could be a

more appropriate argument made by corrections officials

when not providing particular programs or services to disabled inmates. For instance, achieving "full integration" for

inmates with disabilities could create administrative burdens. Gardner, "The Legal Rights of Inmates," p. 195.

1)3
questions of a personal nature.146 Before the

ADA was enacted in 1990, a law student with a

disability might have been able to challenge discrimination by a law school under the Rehabilitation Act of 1973. However, it was not until the

passage of title II of the ADA, covering State and

local governments, that such a student would

have recourse under a Federal statute against a

State licensing board.147

Title II's scope is very broad, covering all

State and local governments, , regardless of

whether they receive Federal financial assistance. It is the first Federal civil rights statute to

cover State professional licensing boards. Precisely because the statute is broad enough to

reach what had heretofore been solely State prerogatives, such as licensing boards, the licensing

issue has emerged as an important one in the

development of title II law. Specifically, the issue has arisen as to when State application requirements and testing procedures violate title

II's nondiscrimination mandate.

DOJ's title II regulations were expressly

authorized by Congress (42 U.S.C. § 12134(a)),

they "should be accorded controlling weight unless [they are] arbitrary, capricious or manifestly

contrary to statute."148 Several provisions in

DOJ's title II regulation apply to licensing and

certification by public entities. A public entity

makes reasonable modifications in its policies,

procedures, and practices, "when the modifications are necessary to avoid discrimination on the

basis of disability.. . ."14s Public entities, thus, are

prohibited from administering "a licensing or certification program in a manner that subjects

qualified individuals with disabilities to discrimination on the basis of disability.. . ."15°

146 Phyllis Coleman and Ronald A. Shellow, "Ask About

Conduct, Not Mental Illness: A Proposal for Bar Examiners

and Medical Boards to Comply With the ADA and Constitution," Journal of Legislation, vol. 20 (1994), p. 147 (hereafter

cited as Coleman and Shellow, "Ask About Conduct, Not

Mental Illness)."

147 Commerce Clearing House, "Americans with Disabilities

Act of 1990Law and Explanation," Labor Law Reports,

Issue No. 320, no. 395 (1990), p. 9.

148 Yeskey v. Pennsylvania Dep't of Corrections, 118 F.3d

168, 171 (3rd Cir. 1997) (quoting Babbit v. Sweet Home

Chapter of Communities for a Great Oregon, 115 S.Ct. 2407,

2418 (1995)), afrd, 118 S.Ct. 1952 (1998).

148 28 C.F.R. § 35.130(6)(7) (1997).

15° Id. § 35.130(b)(6) (1997).

84

DOJ noted in the section-by-section analysis

accompanying its notice of formal rulemaking for

its title II regulation that some comments

"suggested that this part should include the section of the proposed title III regulation that implemented section 309 of the Act, which requires

that courses and examinations related to applications, licensing, certification, or credentialing be

provided in an accessible place and manner or

that alternative accessible arrangements be

made."151 DOJ stated that it did not adopt this

suggestion because the other provisions in the

regulation, such as its general prohibition of discrimination, program access, and communications

requirements, all apply to courses and examinations provided by public entities. DOJ also noted

that another section of its regulation provides protection against discrimination. This is the provision requiring that a public entity administer programs, services, and activities "in the most integrated setting appropriate to the needs of the

qualified individuals with disabilities."152

Finally, the regulation implementing title II

prohibits public entities from applying criteria

that have the effect of differentiating among people on the basis of a disability unless such criteria

are necessary "for the provision of the service,

program, or activity offered."153 A qualified individual with a disability cannot be denied licensure

or certification if the person meets the essential

eligibility requirements for the task involved.154

This requirement also applies when a public entity contracts with a private entity to handle licensing and certification responsibilitieS.155

DOJ's title II regulation perhaps is most effective in protecting people with disabilities who

seek to obtain State licenses when it provides for

simple equality of access. The regulation states

that a public entity may not "limit a qualified individual with a disability in the enjoyment of any

right, privilege, advantage, or opportunity enjoyed

151 56 Fed. Reg. 35,694, 35,702 (1991).

152 Id. at 35,719.

152 28 C.F.R. § 35.130(b)(8) (1997).

154 DOJ's section-by section analysis notes that a "person is

a 'qualified individual with a disability' with respect to licensing or certification if he or she can meet the essential

eligibility requirements for receiving the license or certification." 28 C.F.R. pt. 35, app. A § 35.130 at 477 (1997).

155 Id. § 35.130(6)(3) (1997).

94
by others receiving the aid, benefit, or service."156

The broadness of this provision is entirely consistent with the ADA's overall theme of a broad prohibition against disability discrimination.

Professional Licensing Issues

DOJ has played a significant role in guiding

the direction of the law with respect to State licensing activities and title II. In addition to the

regulatory and interpretive guidance DOJ has

provided, it also has litigated this issue and filed

amicus curiae briefs on behalf of plaintiffs. In addition, DOJ has issued informal policy guidance in

the form of policy letters and technical assistance

materials.157 This effort mainly has focused on

ensuring that State and local licensing boards

provide reasonable modifications to their procedures, policies, or practices when necessary to

avoid discriminationon the basis of disability.158

Application Requirements

One of the key areas relating to title II and

professional licensing procedures has been application requirements for membership in a given

profession. Every State, for example, requires

applicants to its State bar to take a bar examination before they can practice law in that State.

The same is true for medical students seeking to

practice medicine, for accountants, and for other

professionals.

In its Title II Technical Assistance Manual,

DOJ has provided the following example of a

plan that would violate the statute:

158 Id. § 35.130(a)(vii) (1997).

157 As it has with other emergent title II issues, DOJ has produced a significant amount of technical assistance material on

professional licensing and title II. For example, Testing Accommodations for Persons with Disabilities Under the Americans with Disabilities Act: The Impact on Licensure, Certification and Credentialing is a brochure for government officials

explaining the ADA requirements for agencies that offer or

require examinations for licenses, credentials, or certification

for educational, professional, or trade purposes, produced by

the Association on Higher Education and Disability; and Testing Accommodations for Persons with Disabilities: A Guide to

Licensure, Certification, and Credentialing is a 26-page booklet for agencies, institutions, and organizations that offer examinations leading to licenses, credentials, or certification for

educational, professional, or trade purposes, produced by the

Association on Higher Education and Disability (formerly the

Association on Handicapped Student Service Programs in

Postsecondary Education).

158 28 C.F.R. § 35.130(6)(7) (1997).

85

BEST COPY AVAILABLE

An essential eligibility requirement for obtaining a

license to practice medicine is the ability to practice

medicine safely and competently. State Agency X requires applicants for licenses to practice medicine to

disclose whether they have ever had any physical and

mental disabilities. A much more rigorous investigation is undertaken of applicants answering in the affirmative than of others. This process violates title II

because of the additional burdens placed on individuals with disabilities, and because the disclosure requirement is not limited to conditions that currently

impair one's ability to practice medicine.159

DOJ has stated some of the key elements in

an inquiry as to whether a particular licensing

method violates title II. Clearly, the plan in this

example would violate title II because it treats

individuals with disabilities differently from

those without disabilities by forcing people who

report that they have had a physical or mental

illness to undergo more rigorous investigation.

The second reason why this example would violate title II is that its eligibility requirements are

not based on a current inquiry into the individual's ability to practice medicine. Rather, it asks

whether the applicant has ever had a physical or

mental disability. Put simply, DOJ has stated its

main concern as ensuring that public entities do

not "make unnecessary inquiries into the existence of a disability."160

This last point is important because DOJ's

analysis of title II violations in the area of professional licensing procedures has focused extensively on the purpose behind certain questions in

these procedures. In general, to address this

concern, DOJ seeks to ensure that the inquiries

into applicants' backgrounds are as narrowly

tailored to their abilities in the field in which

they are being tested (e.g., law, medicine), as

focused on current information, and as nonintrusive as possible. It should be noted that, in the

context of State professional licensing application inquiries, as in other ADA-related contexts,

159 DOJ, Title II Technical Assistance Manual, § 11-3.5300

(1994 Supp); Bonnie P. Tucker and Bruce A. Goldstein, Legal Rights of Persons with Disabilities: An Analysis of Federal Law (Horsham, PA: LRP Publications, 1992), p. 25:14

(quoting § II-3.5300) (hereafter cited as Tucker and Goldstein, Legal Rights of Persons with Disabilities).

169 DOJ, Title II Technical Assistance Manual, § 11-3.5200;

Tucker and Goldstein, Legal Rights of Persons with Disabilities, p. 25:14 (quoting § 11-3.5300).

9 5
the most controversial and most commonly seen

issues have to do with mental illness and substance abuse.

Here, as elsewhere, DOJ has been clear in

reiterating these standards in other guidance.

For example, in a 1996 policy letter written by

DOJ in response to a letter of inquiry from a

congressman relating to people with chemical

dependency such as alcoholism, DOJ stated:

Whether a licensing board's questions regarding an

applicant's or licensee's history of alcohol or drug

abuse is permissible under the ADA will depend on

whether the questions are necessary to the objective

of practicing the profession at issue in a competent

and ethical manner. Such questions must be focused

on actual, current impairments of candidates, abilities

or functions, and must be narrowly tailored to determine the current fitness to practice the profession.'61

DOJ has issued guidance on medical questions in other policy letters. For example, DOJ

has stated that boards of medical examiners are

permitted to ask questions that screen out, or

tend to screen out, individuals with disabilities

only if the criteria are "necessary" to ensure that

the board is licensing persons fit to practice

medicine.162 DOJ has determined that some

questions asked by boards of medical examiners

appear to be too broad, in particular if a medical

board inquires as to whether an applicant has

ever been hospitalized or a patient in a mental

or other institution of confinement, or has ever

been treated or received medication for a mental

or behavioral condition. Use of such phrases as

"have you ever been" presents a problem in

terms of time period. Time periods should be

limited to the recent past, such as within the last

5 years.163 Questions about hospitalization in a

mental or other institution of confinement, DOJ

states, should be narrowly tailored to seek inforniation that responds directly to legitimate

concerns about granting licenses to or renewing

licenses of persons whose serious mental or behavioral impairments would affect their ability

161 Deval L. Patrick, Assistant Attorney General, CRD, DOJ,

letter to Bennie Thompson, U.S. House of Representatives,

Washington, DC, Aug. 1, 1996 reprinted in 9 Nat'l Disability

L. Rep. ¶ 352.(emphasis added).

162 DOJ, Policy Letter No. 63, p. 2 (April 1993).

163 Ibid., p. 3 (April 1993).

to practice medicine so that others would be exposed to significant health and safety risks.164

DOJ also has issued informal guidance on

questions about physical and mental health.

DOJ suggests that these types of questions be

tied more closely to safe practice of medicine. For

example, asking if an individual's physical or

mental health would affect his or her ability to

practice medicine so that others could be exposed to significant health and safety risks is

more closely tied to the safe practice of medicine

than asking whether the individual is currently

in good physical and mental health.'65

DOJ has investigated several State professional licensing situations. For example, DOJ

found that the Arizona bar application required

applicants to answer questions relating to a history of mental, emotional, or nervous problems,

as well as inquiries regarding treatment for excessive use of alcohol and drugs. According to

DOJ's Letter of Findings to the Arizona bar admissions agency, these questions violated title

11.166 Moreover, according to DOJ, the questions

would have violated title II even if the Arizona

Bar Association's Committee on Character and

Fitness had not used the responses to these

questions to penalize applicants in any way.167

Arizona changed its bar application questions as

a result of DOJ's investigation.168

In addition, DOJ has filed briefs as an amnicus

curiae in at least three cases addressing the issue of application requirements. For example, in

Clark v. Virginia Board of Bar Examiners,169

DOJ filed an ainicus brief in which it advanced

the argument it has made consistently in its informal policy guidance, namely, that some State

agencies' application questions for professional

licensing examinations violate title II's nondiscrimination requirements. In Clark, DOJ's ainicus brief stated that the Virginia Board of Bar

Examiners application for admission asked the

164 According to DOJ, the inquiry needs to focus on the present ability to meet essential eligibility requirements.

165 DOJ, Policy Letter No. 63, p. 4, (April 1993).

166 See Complaint No. 8-11 (DOJ Letter of Findings, Nov. 7,

1994).

167 See ibid.

168 See Tucker and Goldstein, Legal Rights of Persons with

Disabilities, p. 25:13, no. 60.

169 880 F. Supp. 430 (E.D. Va. 1995).

86

96
question: "Have you within the past five (5)

years been treated or counseled for any mental,

emotional, or nervous disorders?"1"

DOJ noted in its amicus brief in Clark that

applicants who answered in the affirmative to

this question were required to provide additional

information concerning their diagnosis, course of

treatment, and prognosis, identify any treating

physician or counselor, and authorize the release

of their records.171 DOJ relied on the same twopronged argument it made in the example from

its Title II Technical Assistance Manual: first,

that applicants who answer affirmatively to this

question are treated differently from 'other applicants because they have to provide personal

information about treatment for a disability;

second, the reason for the question being on the

exam is not sufficiently narrowly tailored to .the

purpose of licensing fit practitioners of law.'"

The court in Clark agreed with DOJ's and the

plaintiffs argument and enjoined the board from

asking future applicants this question.173

In another amicus brief, Medical Society of

New Jersey v. Jacobs,174.DOJ again returned to a

basic goal of the ADA in supporting its argument

against the New Jersey State Board of Medical

Examiners:

While the ultimate goal of the New Jersey State

Board of Medical Examiners ("the Board") to ensure

that only persons able to practice medicine competently and safely be licensed is a laudable one, the

means selected to achieve that goal is not.

The licensure questions at issue in this case target

for further investigation those individuals who have

histories or diagnoses of disabilities. A core purpose of

the ADA is the elimination of barriers caused by the

use of stereotypic assumptions "that are not truly

indicative of the individual ability of [persons with

disabilities] to participate in, and contribute to society. By categorizing persons with disabilities as potentially unfit and imposing additional burdens of

investigation upon them, the Board is engaging in

178 Recommended Findings of Fact and Conclusions of Law

of the United States as Amicus Curiae at 1, Clark v. Virginia

Board of Bar Examiners, 880 F. Supp. 430 (E.D. Va. 1995)

(hereafter cited as U.S. Amicus Curiae in Clark).

171 Id. at 1.

172 Id. at 1-2.

173 880 F. Supp. 430, 431.

174 No. 93-3670, 1991 U.S. Dist. LEXIS 14294 (D.N.J. 1993).

87

precisely the kind of impermissible stereotyping that

the ADA proscribes.' 75

DOJ was successful in Jacobs. The court held

that the practices of the board of medical examiners violated title. II.178 In general, DOJ and the

courts typically have agreed on the key issues

that State professional licensing inquiries must

be about current information only and narrowly

tailored to the purpose behind the examination

to avoid a title H violation. One example of a

court's agreeing with DOJ's position on this

point is In re Petition and Questionnaire for Admission to the Rhode Island State Bar.177 In this

case, the Rhode Island Bar admissions agency

adopted a recommendation to eliminate bar application questions about applicants' history of

substance abuse or mental-health-related treatment, only permitting questions concerning

whether applicants currently are suffering from

a disorder or using drugs and alcohol to the extent that it would interfere with their practice of

law. This action is consistent with the ADA,

whose civil rights protections do not extend to

current illegal drug users, but do cover former or

recovering drug users.178

Other courts have followed suit on this issue.179 For example, in Ellen S. v. Florida Board

of Bar Examiners, a Florida court held that a bar

admissions requirement that applicants disclose

whether they have ever sought treatment for a

mental, emotional, or nervous condition and

authorize release of their medical records vio175 Memorandum of the United States as Amicus Curiae at

1-2, Medical Society of New Jersey v. Jacobs, No. 93-

3670,1991 U.S. Dist. LEXIS 14294 (D.N.J. 1993).

176 The court held that extra investigations of qualified applicants for a license to practice medicine or a renewal of

this license who answer "yes" to questions concerning mental health and alcohol or drug use history violates title II.

1991 U.S. Dist. LEXIS 14294 at *20*21. It denied plaintiffs

request for a preliminary injunction, however, stating that

there was no record evidence that individuals who answer "yes" to such questions are subject to additional investigations with any frequency or rapidity. Id. at *30*31.

177 683 A.2d 1333, 1336-38 (R.I. 1996).

178 See 42 U.S.C. § 12114 (1994).

178 Two commentators, Tucker and Goldstein, in their treatise on Federal disability law, Legal Rights of Persons with

Disabilities: An Analysis of Federal Law, have provided a

list of cases that have found similarly to DOJ in the Arizona

investigation. Tucker and Goldstein, Legal Rights of Persons

with Disabilities, pp. 25:12 to 25:13 & n.59.
lated title 11.188 In accord with DOJ's guidance

on this issue as enunciated in its Technical Assistance Manual and policy guidance, courts and

State licensing agencies appear to have recognized the importance of asking only questions

related to current impairments that might negatively affect a professional career.

Nonetheless, there have been a few dissenters. For example, in McCready v. Illinois, the

court found that where questions about a history

of mental health or Substance abuse were asked

of third parties or references for the applicant,

the procedure did not violate title 11.181 In at

least one case, a Texas court found that questions about mental illness over the last 10 years

on Texas' bar admission application did not violate title 11.182 The court noted that the questions

were limited to certain specific mental illnesses,

including bipolar disorder and schizophrenia.183

The court found, however, as a matter of law

that there was no title II violation. The court

observed:

Is it necessary that the Board inquire whether an applicant has been diagnosed or treated for bipolar disorder, schizophrenia, paranoia, or other psychosis before

licensing the individual to assume these responsibilities? Before licensing the individual to write wills,

manage trusts set up for minors and disabled individuals, or draft contracts affecting parties' rights and finances? Before licensing the individual to represent a

parent in a proceeding to determine if the parent will

maintain or lose custody of a child? Before licensing the

individual to represent a individual charged with a

crime who faces loss of liberty or even life? In each of

these proceedings, the lawyer must be prepared to offer

competent legal advice and representation despite the

stress of understanding the responsibility the lawyer

has assumed while balancing other clients' interests

and time demands. The rigorous application procedure,

including investigating whether an applicant has been

diagnosed or treated for certain serious mental illnesses, is indeed necessary to ensure that sTexas' lawyers are capable, morally and mentally, to provide

these important service S.184

180 859 F. Supp 1489, 1493-94 (S.D. Fla. 1994).

181 No. 94 C 3582, 1995 U.S. Dist. LEXIS 791 at *19*21

(E.D. III. 1995).

182 Applicants v. Texas State Bd. of Bar Examiners, No. A 93

CA 740 SS, 1994 U.S. Dist. LEXIS 21290 at *31*32 (W.D.

Tex. 1994).

183 Id. at *2.

184 Id. at *29*30.

The Applicants court agreed with DOJ and

the majority of courts in that it, too, held that

"broad-based" questions about mental health

would be impermissible. The court stated that

"the Board has changed its inquiry and subsequent investigation form following the strict

statutory language to a narrowly focused inquiry. The current question 11 is narrowly focused on the specific serious mental illnesses

experts have advised the Board are likely to affect an applicant's present fitness."188 The court

agreed that title II does require a narrow tailoring of questions to ensure that stereotypes

and myths about disabilities do not infect the

process. However, it disagreed that the reformulated questions were too "broad based," and it

saw no violation of the statute based on differential treatment of people with disabilities. On this

point, the court essentially argued that the questions about mental illness were necessary to ensure against potential direct threats and to ensure the "case-by-case, individualized" inquiry

required under the ADA.188 Finally, the Applicants court noted that "the affirmative answer

does not result in an immediate denial of a license to practice law," and therefore no right

protected under the ADA was abrogated.187 The

court wrote: "The Board's process furthers the

goal of the ADA to integrate those defined as

mentally disabled into society while ensuring

that individuals licensed to practice law in Texas

are capable of practicing law in a competent and

ethical manner."188

The arguments of the Applicants court are

persuasive. However, DOJ's interpretation of the

statute is prevailing in the courts. It seems that

the crux of the difference between the two arguments is how discrimination on the basis of

disability is viewed in this context. The question

is, is it discrimination to require more of an applicant who responds that he or she does have a

history of mental illness? Or, is discrimination

185 Id. at *30*31.

188 Id. at *26*27. The court stated that the board strove to

"avoid improper generalization or stereotyping of mentally

disabled individuals, as defined by the ADA and to apply objective criteria on an individualized basis to determine if an

applicant poses a threat to the public if licensed." Id. at *26.

187 Id. at *32.

1881d. at *32.

88

98
only present if that individual is denied a license

to practice as a result of having answered yes?

The basic ADA issue that DOJ has confronted

in its investigations and cases involving professional licensing requirements is the myths,

fears, and stereotypes that have historically accompanied certain disabilities and continue to

affect the lives of people with these disabilities.

DOJ stated its major concern with respect to this

issue eloquently in its ainicus brief in the Clark

case:

At the heart of the Virginia Board of Bar Examiner's

case is a belief that inquiries into treatment, counseling, or diagnosis of any mental illness will yield

information that will predict an attorney's inability to

practice law. While the Board asserts that it has not

and will not deny a license solely on the basis of an

affirmative response to [a question asking about previous treatment for mental illness], it cannot be disputed that [this question's] broad inquiry into the

applicant's mental health history reflects an assumption that past diagnosis of or treatment for mental or

emotional conditions renders the applicant more

likely than other candidates to be substantially impaired in his or her ability to perform as a lawyer.189

An increasing number of lawsuits challenging

the legality of mental health history inquiries is

forcing State bar examiners and courts to consider the effect of title II and potential alternatives to these types of questions that the statute

might require.190 To date, the only jurisdiction to

remove all questions relating to mental disability from its bar application is the District of Columbia.191

The American Bar Association has recommended that State bar examiners tailor questions relating to mental health in a manner that

will elicit only information relevant to an applicant's current qualifications to practice law.192 In

189 U.S. Amicus Curiae in Clark at 7-8. 190 Carol J. Banta, "Note, The Impact of the Americans with

Disabilities Act on State Bar Examiners' Inquiries Into the

Psychological History of Bar Applicants," Michigan Law

Review, vol. 94 (October 1995), pp. 168-70 (hereafter cited

as Banta, "The Impact of the ADA on State Bar Examiners'

Inquiries").

191"Bar Exams, Medical Boards Are Putting ADA to the

Test," Disability Compliance Bulletin (LRP), vol. 4, iss. 1

(July 7, 1993), p. 7. 192 Tucker and Goldstein, "Legal Rights of Persons with

Disabilities," pp. 25:13, n.60 (discussing resolution drafted

89

addition, the ABA suggests that such questions

be "narrow both as to the time periods covered

and the scope of information sought."

As the court in Applicants v. Texas State

Board of Law Examiners observed, there is a

balancing of interests between the nondiscrimination requirements of title II and the interest

States have in, ensuring that the public is safe

from unqualified practitioners, whether the field

is law, medicine, or some other. Many States

traditionally have required applicants to provide

information about their mental health history.193

Striking the appropriate balance, as in other areas of ADA law, has proven somewhat difficult.

Many suggestions have been made for reforming

the system. For example, some legal commentators have advocated a conduct-based (e.g., has

the applicant demonstrated professionalism, responsibility and integrity in prior activities?) as

opposed to a status-based (e.g., is the applicant a

mental health patient?) analysis.194

Testing Procedures

Other issues relating to professional licensing

and title II are more controversial. One of the

most significant issues relates to the examination and the test-taking procedure itself. Challenges have emerged because of the need to

clarify the extent to which State licensing bodies

are required by the ADA to modify testing procedures for applicants with disabilities who sit

for licensing exams.195 The main dispute in the

by members of the ABA's Commission on Mental and Physical Disability, Section of Legal Education and Admissions to

the Bar, National Conference of Bar Examiners and the

Association of American Law Schools). 193 Clark v. Virginia Bd. of Law Examiners, 880 F. Supp.

430, 438-41 (E.D. Va. 1995) (discussion of various States'

requirements); see generally Catherine C. Cobb, "Comment,

Challenging a State Bar's Mental Health Inquiries Under

the ADA," Houston Law Review, vol. 32 (Winter 1966), p.

1384 (hereafter cited as Cobb, "Challenging a State Bar's

Mental Health Inquiries Under the ADA"); Deborah L.

Rhode, "Moral Character as a Professional Credential," Yale

Law Journal, vol. 94 (1985), pp. 575-83. 194 Coleman and Shellow, "Ask About Conduct, Not Mental

Illness"; Phyllis Coleman and Ronald A. Shellow,

`Restricting Medical Licenses Based on Illness is Wrong

Reporting Makes It Worse," Journal of Law and Health, vol.

9 (1994/1995), p. 273; Cobb, "Challenging a State Bar's Mental Health Inquiries Under the ADA."

195 See, e.g., Argen v. New York State Bd. of Law Examiners,

860 F. Supp. 84 (W.D.N.Y. 1994) (applicant did not prove by
courts is how far a State licensing board must go

in making reasonable accommodation or modification to individuals with disabilities who are

candidates for membership in a State licensed

profession. This controversy is borne out in the

caselaw and in DOJ's letters of findings in title

II investigations, ainicus curiae briefs, and title

II litigation.

For example, DOJ has found at least one

State agency, the New York Board of Bar Examiners, in violation of title II. DOJ found that

the board refused to provide qualified individuals with disabilities the accommodations necessary, based on the nature and severity of their

disabilities, to afford them an opportunity to

demonstrate the legal knowledge and legal reasoning ability that the examination sought to

measure.'" In a letter of findings detailing title

II violations by the New York State Board of

Law Examiners,107 DOJ stated that a formal

written voluntary compliance agreement was

necessary to provide appropriate remedies for

the victims of past discrimination and would ensure that the types of violations that had occurred in the past would not happen again. DOJ

stipulated that standards and procedures for

processing requests for accommodation would be

included in the compliance agreement. The compliance agreement would also include standards

and procedures for determining whether the applicant was a qualified individual with a disability and for making an individualized determination of the accommodations necessary to provide

such persons an opportunity to participate in

and benefit from the bar examination that is

equal to the opportunity afforded to others.'"

preponderance of evidence that he suffered from learning

disability entitling him to special accommodations for taking

bar exam); Pazer v. New York Bd. of Law Examiners, 849 F.

Supp. 284 (S.D.N.Y 1994) (same); In re Petition of Kara B.

Rubenstein, 637 A.2d 1131 (Del. 1994) (applicant with

learning disability ordered admitted after board of examiners denied applicant additional time to take multistate bar

examination (MBE) portion with extra time and passed

MBE portion without extra time in previous administration). 196 See New York State Board of Law Examiners (DOJ Letter of Finding, Jan, 14, 1994). 19.1 DOJ, Policy Letter No. 119 (January 1994). 198 DOJ, Policy Letter No. 119, p. 9 (January 1994).

DOJ has sought to resolve title II issues

through its litigation and ainicus curiae work.'"

For example, DOJ filed an amicus brief in Rosenthal v. New York Board of Law Examiners, in

which it explained that although title II itself

does not set forth specific requirements for testing practices, title III does. Title III's testing

standards, DOJ argued, "are useful as a guide

for determining what constitutes discriminatory

conduct by a public agency in testing situations

under both Titles I and II."200 The court in this

case relied on title III and its implementing

regulations even though it was a title II case,

because title III regulations discuss professional

licensing and testing procedures and title II

regulations do not."'

Court response has been mixed in title II

cases involving professional licensing applicants

seeking modifications to testing procedures to

accommodate a disability. Some courts have

found that the claimant did not have a disability

that would entitle him or her to accommodation.

On the other hand, where evidence has been sufficient to show, say, a learning disability or visual impairment, courts have appeared responsive to the need for reasonable modification. For

example, in D'Amico v. New York State Board of

Law Examiners, a court ordered the New York

State Board of Bar Examiners to accommodate a

vision-impaired candidate by allowing the person to take the examination over 4 days rather

than 2.202 Similarly, in Weintraub v. Board of

Bar Examiners, a court held that a learningdisabled individual was entitled to accommoda199 Daniel Searing, Supervisory Attorney, Office Administration, DRS, CRD, DOJ, interview in Washington, DC, Apr.

13, 1998, p. 2. Mr. Searing noted DRS continues to write a

lot of amicus briefs to bring more clarity to the statute. Ibid. 200 Memorandum of Law by United States of America, Stating the Government's Views on Issues Pending Before the

Court, at 4 n.2, Rosenthal v. New York Board of Law Examiners, No. 92 Civ. 1100 (S.D.N.Y. July 29, 1992). The case

was settled when the board agreed to grant extra time to

take the examination to the applicant, who had severe dyslexia. Don DeBenedictus, "Bar Examiners Respond to the

ADA," ABA Journal (November 1992), p. 20. 201 See 42 U.S.C. § 12189 (1994) (examinations and courses

related to licensing); 28 C.F.R. 36.309 (1997) (same); 28

C.F.R. pt. 36, app. B § 36.309 (DOJ analysis of ADA provision and implementing regulation on examinations related

to licensing). 202 813 F. Supp 217, 291 (W.D.N.Y. 1993).

90

100
tions in the form of extended time to complete

the exam.203

However, in other cases, courts have held

that no accommodation was required. For example, in several cases, courts have found evidence

of disability insufficient to allow any form of accommodation or modification to the normal

testing procedure.204 In general, courts are applying the same analysis as under title I, that is,

a determination of whether the ADA claimant

can prove that he or she is a qualified individual

with a disability.

Other Licenses

DOJ also provides technical assistance and

issues policies on such licenses as driving and

hunting. The phrase "essential eligibility requirements" is particularly important in the context of State licensing requirements. Although

many programs and activities of public entities

do not have significant qualification requirements, licensing programs often do require applicants to demonstrate specific skills, knowledge, and abilities. For example, an individual

seeking a driver's license is not a "qualified individual" unless he or she can operate a motor vehicle safely. A public entity may establish requirements, such as vision requirements, but

denying a driver's license to all individuals who

have missing limbs, for example would be discriminatory if the individual could operate a vehicle safely without use of the missing limb.

Unfortunately, a major barrier for people

with mental illnesses has been obtaining driver's

licenses.205 For instance, the California Depart203 Tucker and Goldstein, Legal Rights of Persons with Disabilities, p. 25:15 (citing Weintraub v. Board of Bar Examiners, No. 0E-0087, slip op. (Mass. Sup. Jud. Ct. 1992)).

2" See Christian v. New York State Bd. of Law Examiners,

899 F.Supp. 1254 (S.D.N.Y. 1994) (denying a motion for preliminary injunction filed by a person with a learning disability

who sought to require the State bar examiners to provide

accommodations necessary for her to take the bar exam);

Pazer v. New York State Bd. of Law Examiners, 849 F. Supp.

284 (S.D.N.Y. 1994) (denying injunctive relief to a man seeking accommodation to compensate for alleged "visual processing" disability because evidence was insufficient to show

learning disability); Argen v. New York State Bd. of Law Examiners, 860 F. Supp. 84 (W.D.N.Y. 1994) (denying testing

accommodation or modification for bar exam student who

failed to prove he had a learning disability).

Zoe Bazelon Center for Mental Health Law, Opening Public

Agency Doors: Title II of the Americans with Disabilities Act

91

ment of Rehabilitation reported the following

incident:

We received a call on the ADA technical assistance

line from an individual who was bi-polar. He had

been driving for his present employer for a number of

years incident free. When he was diagnosed with a bipolar disorder he was put on medication. He disclosed

to his employer who had no problems with this. However, when he went to renew his license Department

of Motor Vehicles would not renew it because of his

condition (and/or the medication he was tak[ing] to

control his condition). Neither the employee nor the

employer could understand DMV's rational[e]. And

this is a policy on which they will not budge."6

Some departments of motor vehicles (DMVs)

historically have required answers to overly broad

questions about past mental illness or substance

abuse, such as "Have you ever been a patient or

committed to an institution for mental disorders

or drugs and/or alcohol?" An affirmative answer to

such a question might result in a refusal to grant

a license until the applicant submitted a letter of

release. According to the Bazelon Center for Mental Health, which investigated a DMV in South

Carolina, these questions often were crafted on

the mistaken assumption of a high correlation

between mental illness and driving accidents.207

These types of questions, however, are prohibited

by the title II regulation, providing that eligibility

criteria that screen out a class of people violate

title II, unless the criteria can be shown necessary

to providing services.208

DOJ also has issued policies on other licenses. In response to a letter seeking guidance

on the issuance of a special hunting permit that

allows individuals with disabilities to shoot

game animals from a stationary vehicle, DOJ

stated that an ADA regulation permits a public

entity to offer benefits to individuals with disabilities, or a particular class of individuals with

disabilities, that it does not offer to individuals

and People with Mental Illnesses: A Collaborative Approach

for Ensuring Equal Access to State Benefit and Service Programs (Washington, DC: Judge David L. Bazelon Center for

Mental Health Law, August 1995), pp. 32-33 (hereafter

cited as Bazelon Center, Opening Public Agency Doors).

2" Martin letter, attachment, p. 4.

207 Bazelon Center, Opening Public Agency Doors, p. 33.

2" 28 C.F.R. § 35.130(6)(8) (1997).

101
without disabilities.209 DOJ stated that the purpose of this provision is to allow State and local

governments to provide special benefits, beyond

those required by the ADA, that are limited to

individuals with disabilities or a particular class

of individuals with disabilities, without incurring additional obligations to persons without

disabilities or to other classes of individuals with

disabilities.")

Overall, DOJ's requirements for specific inquiries narrowly tailored to the purposes for

which they are being asked, namely, a determination as to whether the candidate is qualified,

has given title II vitality in this area. This emphasis on the qualifications of a professional has

forced many State agencies and institutions into

discovering how little their collective myths,

fears, and stereotypes about people with disabilities have to do with being qualified to practice

law or medicine. In part because of DOJ's guidance in policy letters and arguments in ainicus

briefs, there has been a noticeable change in the

way licensing applications and testing procedures are conducted.

Public Health Care

Health care providers, including all State and

municipally managed hospitals, nursing homes,

health plans, health care programs, health insurance, and all health care services, direct or

contractual, fall under the scope of title II of the

ADA.211 The health care facilities and programs

that are operated by State and local governments must not exclude qualified individuals

with disabilities, on the basis of disability, from

receiving their benefits, services, and programs,

nor subject such individuals to discrimination.212

Many of the comments on DOJ's February

1991 proposed title II regulation raised concerns

208 DOK, Policy Letter No. 55, p. 1 (February 1993) (citing 28

C.F.R. § 35.130(c) (1997)).

210 Ibid.

211 28 C.F.R. §§ 35.130(b)(1),(3) (1997) (exclusion of qualified

individual with a disability from participation in or benefits

of services, prohibited, whether offered directly by a public

entity, or through contractual, licensing, or other arrangements).

212 Id. § 35.130(a) (1997). The Department of Health and

Human Services (HHS), not DOJ, is the Federal agency

responsible for investigating alleged title II violations by

public health care providers. Id. § 35.190(6)(3).

92

about how it would affect the operations of health

care providers. Most health care providers offer

information about their operations as a public

service to anyone who requests it. Commentators

requested clarification on whether public health

care providers would be required to provide

equally effective communication for individuals

with impaired hearing or speech.213 DOJ addressed the communications concern in the provision in the title II regulation that requires a public entity to provide effective telecommunication

systems for individuals with disabilities.214

Commentators also raised concerns about the

effect of the ADA with respect to health and

safety concerns of individuals with disabilities.

In developing its title II regulations, DOJ had to

address questions relating to safety policies and

the inclusion of individuals with disabilities who

pose a significant risk to the health or safety of

others.215 DOJ has relied on a regulatory provision developed for title III of the act when issues

of safety standards in public entities have

arisen.216 This provision states that a public accommodation is not required to permit an individual to participate in or benefit from the goods,

services, facilities, privileges, and advantages of

the public entity, if that individual poses a direct

threat to the health or safety of others.217 DOJ

cites School Board of Nassau County v. Arline, to

support this position.218 In that case, the U.S.

Supreme Court recognized the need to balance

the interests of people with disabilities against

legitimate concerns for public safety. In accord

with Arline, DOJ's analysis in its title II implementing regulations states that, although a person with a disability is protected under the provisions of title II, a person who poses a threat to

others will not be "qualified" for inclusion if reasonable accommodations or modifications to the

213 Id. pt . 35, app. A § 35.161(1997).

214 Id. § 35.161 (1997).

215 Id. pt. 35, app. A § 35.104, at 472-73 (1997).

216 See Id. § 36.208 (1997) (public accommodation not required to provide goods, services, accommodations to an

individual who poses a direct threat to the health or safety

of others).

217 42 U.S.C. § 12182(6)(3) (1994).

218 480 U.S. 273 (1987).

102
public entity's policies, practices, or procedures

will not eliminate that risk.219

Integrated Setting

One of the most important issues relating to

title II and health care has been the provision

requiring that individuals with disabilities be

placed in the most integrated setting possible to

ensure the full inclusion of individuals with disabilities within the community or within a State

or local institution. The legislative history of the

ADA confirms that Congress intended the act to

end the unnecessary segregation of people with

disabilities from the rest of the community.220

Both the House and Senate reports emphasized

that one of the major purposes of the act was to

end the isolation, exclusion, and segregation of

individuals with disabilities.221 In the ADA statute, Congress addressed the discrimination

against persons with disabilities in the "critical

area[ ] . . . [of] institutionalization.. . ."222 Thus,

in both the ADA's legislative history and its

findings and purposes as they are outlined in the

legislation, Congress recognized that the isolation, segregation, and exclusion "represented by

unjustifiable institutionalization constitute disability-based discrimination."223 Unnecessary

219 28 C.F.R. pt. 35, app. A § 35.104, at 472 (1997). However,

the determination of a person who is a "direct threat" cannot

be based on generalizations or stereotypes. It must be based

on individual assessment, current medical evidence, and the

best available objective information. The assessment also

must include whether reasonable modifications will mitigate

the risk or threat. Id. at 472-73.

229 See S. Rep. No. 116, 101st Cong., 1st Sess. 6 (1989); H.R.

Rep. No. 485 (I), 101st Cong., 2d Sess. 24 (1990), reprinted in

1990 U.S.C.C.A.N. 267, 268 ("The Americans with Disabilities Act (ADA) will permit the United States to take a longdelayed but very necessary step to welcome individuals with

disabilities fully into the mainstream of American society").

221 See S. Rep. No. 116, 101st Cong., 1st Sess. 8 (1989); 135

Cong. Rec. 19,801 (1989).

222 42 U.S.C. §§ 12101(a)(3) (1994).

223 United States' Response to Defendants' Motion for Judgment on the Pleadings and Plaintiffs' Motion for Summary

Judgment on Plaintiffs' Claims Under the Americans with

Disabilities Act of 1990 at 5-6, Wyatt v. Hanan, No 3195N

(M.D.A1a) (hereafter cited as Wyatt v. Hanan, U.S. Amicus

Curiae). This is an ongoing class action lawsuit initially filed

in 1971 claiming that facilities operated by the Alabama Department of Mental Health and Mental Retardation violated

residents' rights under Federal law, including the ADA. The

named defendant has changed when a new commissioner of

mental health takes office. Wyatt v. Poundstone III, No. 3195

93

BEST COPY AVAILABLE

and unjustifiable institutionalization of persons

with disabilities also was identified specifically

in congressional testimony by numerous supporters of the ADA as one of the forms of segregation and discrimination that the act was intended to eliminate.224

The title II regulations recognize that in the

case of individuals with disabilities, "discrimination takes many different forms, including

programs that perpetuate the false assumption

that people with disabilities must be segregated

from the rest of society in institutions."225 The

title II regulations address both institutionalization and the need for integration of persons with

disabilities. The regulations declare that a

State's provision of services in an unnecessarily

segregated setting constitutes unlawful disability-based discrimination. This provision, known

as the "integration regulation," requires States

to "administer services, programs, and activities

in the most integrated setting appropriate to the

needs of qualified individuals with disabilities."226 DOJ's analysis of its regulations explains that this regulatory provision requires all

public entities to ensure a setting that enables

each person with a disability in their care to interact with persons without disabilities to the

"fullest extent possible."227 The preamble to the

title II regulations states that "integration is

fundamental to the purposes of the ADA. Provision of segregated accommodations and services

relegates persons with disabilities to secondclass status."228 Thus, DOJ's regulations reflect

Congress' determination that services must be

provided in an appropriate integrated setting.

In the final regulations, DOJ recognized that

promoting integration of individuals with disabilities into the mainstream of society is an important objective of the ADA and, in most instances, separate programs or requirements for

individuals with disabilities are not permitted.

N, 1995 U.S. Dist. LEXIS 13672 (M.D. Ala. April 18, 1995)

(granting motion in part, denying in part).

224 Wyatt v. Hanan, U.S. Amicus Curiae at 13.

225 Id. at 11.

226 28 C.F.R. § 35.130(d) (1997); Wyatt v. Hanan, U.S. Amicus Curiae at 8.

227 Id. pt. 35, app. A § 35.130, at 478 (1997).

229 Id. pt. 35, app. A § 35.130, at 476 (1997); Wyatt v. Hanan,

U.S. Amicus Curiae at 8-9, 11.
However, DOJ's analysis of the regulations

states that section 504 of the Rehabilitation Act

of 1973 permits separate programs in limited

circumstances and that Congress "clearly intended" that the regulations issued under title II

adopt the standards of section 504.229 It also addresses the unlawful and segregated environment within State institutions, including health

care facilities.

Many of the commentators asked for clarification on a public entity's obligations when it

offers a separate program but an individual with

a disability chooses not to participate in the program. DOJ's position is that each situation has

to be assessed individually. It stated that it is

impossible to make a generalized statement as to

what level of modification would be required in

the integrated program. The first step is to question whether the separate program is necessary

and what would be required to include individuals with disabilities in the integrated program.230

Policies on Title II and Health Care

Policy Letters on Health Care Issues

To date, DOJ has issued few policy letters

addressing health care issues. Policy letters,

which express DRS' position on issues, usually

respond to inquiries on interpretation and implementation of the regulations.231 Although

many of these inquiries fall under title III rather

than title 11,232 DOJ states in its analysis of the

title II regulations that some issues, such as

safety and integration, are applicable or the

same as those requirements under title 111.233

In 1992, DOJ received a complaint that the

California Health and Safety Code discriminated

against individuals with mental impairments by

failing to require health insurance plans to continue coverage of dependent children with mental impairments other than mental retardation.

229 See 28 C.F.R. pt. 35, app. A § 35.130 at 478 (1997). See

also Madden-Tyler v. Maricopa County 189 Ariz. 472, 943

P.2d 822, 829 (Ariz. Ct. App. 1997) (title II and all of its requirements are applicable under the standards set forth in

section 504 of the Rehabilitation Act).

230 28 C.F.R. pt. 35, app. A § 35130, at 478-79 (1997).

231 Wodatch interview, p. 3.

232 Ibid.

233 See 28 C.F.R. § 35.130, pt. 35, app. A § 35.130, 472, 476

(1997).

The coverage for other children was limited by

age, whereas children with mental retardation

or physical disabilities required continued coverage.234 In its letter of findings, DOJ did not find

the California code in violation of title II of the

ADA. DOJ explained that although title II prohibits public entities from enforcing regulatory

requirements that would discriminate against

individuals with disabilities, title II generally

permits State and local governments to provide

benefits to a particular class of individuals with

particular types of disabilities that they do not

provide to individuals with different disabilities.235 Where a benefit is provided to a particular class of individuals with particular types of

disabilities (in this case, mental retardation and

physical disabilities), discrimination is determined by comparing the treatment of all individuals with disabilities to the treatment provided to similarly situated individuals without

disabilities.236

In 1993, DRS provided informal guidance to

the Texas Department of Mental Health and

Mental Retardation on application of the ADA to

group homes provided for persons with mental

retardation.237 The agency said that it contracts

with private citizens for placement of persons

with mental retardation into their homes and

asked if these homes are considered places of

public accommodation under title III of the ADA

and what were the State's and owners' obligations to upgrade the accessibility of these

homes.238 DRS' response was that for this particular group home program, the State must ensure that the contract activities were carried out

in a manner consistent with the State's title II

responsibilities.239 DRS explained that title II

234 DOJ, CRD, Coordination and Review Section, policy letter of finding to Unknown Complainant, California, re:

Healthcare, Feb. 3, 1992 (hereafter cited as CRD Unknown

Healthcare letter of finding, California).

235 Ibid.; 28 C.F.R. § 35.130(c) (1997).

236 CRD Unknown Healthcare letter of finding, California.

237 John L. Wodatch, Chief, Disability Rights Section

(formerly the Public Access Section), CRD, DOJ, Policy letter to David L. Rollison, Texas Department of Mental

Health and Mental Retardation, San Antonio State School,

San Antonio, TX, June 15, 1993 (hereafter cited as Rollison

Healthcare Policy letter).

238 Ibid.

239 Ibid.; 28 C.F.R. §§ 35.130(a)(ii), 130(b) (1997).

94

104
requires the State to ensure "program access,"

which means that the program, when viewed as

a whole, must be accessible to qualified persons

with disabilities. Title II also requires the State

to administer its services, programs, and activities. in the most integrated setting appropriate to

the needs of qualified individuals with disabilities.240 The homes themselves were not covered

by title II, and under different circumstances,

they would fall under title III. For example, the

homes would be covered under title III if they

were social service center establishments that

provided meals, transportation, and counseling.

The homes would not be subject to the ADA if

they simply provided a "family-like" living arrangement, without any social services.24I

DOJ's position on health and life insurance

coverage and premiums for persons with disabilities is made clear in at least two policy letters. DRS wrote that the ADA allows insurance

companies to charge more for insurance, to deny

health insurance to an individual with a preexisting condition for that condition, or to offer

policies that limit coverage for certain proce- dures or treatments, but only if the higher

charges or limitations in coverage are based on

sound actuarial data and principles.242

Responding to a 1993 inquiry on whether

health and life insurance premiums could be affected by a person's disability, DRS wrote that

while the ADA does provide some protection for

individuals with disabilities, the act does not

prohibit the use of legitimate actuarial considerations.243 DRS also recommended that the

writer, a parent, ask the appropriate State officials about different or additional protections for

the child with a disability.244 Another inquiry

asked if developmentally disabled children are

protected by the ADA and if so, whether that

prevents discrimination by companies that pro240 Rollison Healthcare Policy letter.

241 Ibid.

242 See John L. Wodatch, Chief, Disability Rights Section

(formerly the Public Access Section), CRD, DOJ, Policy letter to Unknown Constituent, no location, Dec. 9, 1993, re:

Healthcare, reprinted in 5 NDLR ¶ 85(hereafter cited as

DOJ Healthcare Policy letter to Unknown Constituent).

243 Ibid.

vide health insurance.245 Although this particular inquiry fell under title III of the ADA (an insurance company is a private entity), a public

entity that provides goods and services may not

discriminate on the basis of disability. DRS' response was that although the ADA does provide

some protection for individuals with disabilities

in dealings with insurance companies, it does

not prohibit the use of legitimate, sound actuarial considerations in setting charges or refusal

to provide coverage.246

DRS' response to an inquiry on whether the

ADA permits public or private entities to provide

medical or dental treatment to persons with disabilities (in this case, HIV) in segregated settings was clear.247 First, DRS wrote that the

ADA prohibits discrimination against an individual on the basis of an individual's HIV or

AIDS condition. This is true whether the entity

is public or private. Second, DRS wrote that

"under both titles II and III, the ADA generally

prohibits the provision of separate or different

services to individuals with disabilities, unless it

is necessary to make the services as effective for

people with disabilities as they are to others."248

Third, the response stated that both public and

private entities are required to provide their

services in the most integrated settings appropriate to the needs of the individuals with disabilities. DRS then elaborated on the exceptions

found in the "integration" requirement (under

titles II and 111).249

DRS explained that both titles II and III contain an exception to the general integration requirements when an individual with a disability

poses a "direct threat" to the health or safety of

others.259 According to DRS, a direct threat is

243 John L. Wodatch, Chief, Disability Rights Section,

(formerly the Public Access Section), CRD, DOJ, Policy letter to Unknown Respondent, Sherman, TX, June 17, 1993,

re: Healthcare (hereafter cited as Unknown Healthcare Policy letter, Texas).

246 Ibid.

247 John L. Wodatch, Chief; Disability Rights Section

(formerly the Public Access Section), CRD, DOJ, Policy letter to A. Laurence Field & Associates, DE, Sept. 10, 1993,

re: Healthcare (hereafter cited as Field & Associates Healthcare Policy letter).

248 Ibid.

249 Ibid.

244 Ibid. 238 Ibid.; 28 C.F.R. pt. 35, app. A § 35.130, at 472-73 (1997).

95

105
defined as a "significant risk to the health or

safety of others that cannot be eliminated or

satisfactorily mitigated by reasonable modifications to the covered entity's procedures."251 According to DOJ's analysis of its title II regulation, an individual who poses a direct threat is

not considered a "qualified" individual for services or programs being offered.252

The issue of segregation appears to surface for

persons who are HIV positive or have AIDS.

However, under both titles II and III, individuals

with HIV or AIDS may not be treated in a segregated setting unless it is necessary to provide

those individuals with treatment as effective as is

provided to individuals without HIV or AIDS.

DOJ's position is that individuals with HIV or

AIDS do not pose a direct threat to health professionals or other medical patients as long as reasonable sanitary methods can satisfactorily mitigate the risk of spreading the virus.253

Amicus Curiae Briefs in Health Care Related Cases

DRS develops ADA policy through ainicus

briefs and litigation, and DOJ has filed numerous

ainicus briefs in support of plaintiffs who alleged

discrimination in health care under title 11.254

However, DRS has been selective in the cases involving health care. Most of the cases involving

health and life insurance fall under title III, although DRS did file a brief in a case challenging a

cap in medical benefits for AIDS for Illinois State

employees.255 Another title II issue in health care

is the use of interpreters in hospitals.256

To date, the focus of DOJ's title II health care

briefs has been cases involving public entities and

their interpretation and/or implementation of

DOJ's "integration regulation."257 For example, in

Wyatt v. Hanan, the plaintiffs sued the State of

Alabama because it operated a dual system for

providing residential care, treatment, and train251 Field & Associates Healthcare Policy letter; 28 C.F.R. pt.

35, app. A § 35.130, at 472 (1997).

252 See 28 C.F.R. pt. 35, App. A § 35.130, at 472 (1997), Field

& Associates Healthcare Policy letter.

253 Field & Associates Healthcare Policy letter.

254 John Wodatch, Section Chief, DRS, CRD, DOJ, interview

in Washington, DC, Apr. 16, 1998, p. 4; Breen interview, p. 1.

255 Wodatch interview, p. 3.

256 Ibid.

257 28 C.F.R. § 35.130 (d) (1997).

96

ing to residents with mental disabilities.258 According to the suit, the State operated five institutions for persons with developmental disabilities

and mental retardation and six institutions for

people with mental illness. DOJ's position in the

case was that community-based programs represent integrated services both because they are

physically located in the mainstream of society

and because they provide opportunities for people

with mental disabilities to interact with nondisabled persons.259 DOJ wrote in its ainicus curiae

brief that confinement of persons with mental

disabilities in Alabama's institutions constituted

segregation because individuals living in such

facilities are separated from the community and

are isolated from where others live, work, and

engage in life's activities.260 Many individuals who

were institutionalized in Alabama, professionals

had determined, were placed improperly and

should be served in appropriate community-based

programs.261

The legal question in the case was whether

the defendants' unnecessary segregation of individuals with disabilities constituted discrimination under title II of the ADA.262 DOJ's position

was that the case clearly fell under title II and

that the defendants misinterpreted the prohibition in title II against segregation.263 DOJ sided

with the plaintiffs' motion for summary judgment on the grounds that unnecessary segregation of individuals with disabilities in institutions is a form of discrimination prohibited by

the ADA and the corresponding regulations,264

that ending the discriminatory segregation and

isolation through unnecessary institutionalization is a specific purpose of the ADA,265 that the

ADA regulations require States to provide services in the most integrated setting appropriate to

the needs of people with disabilities,266 and that

258 Wyatt v. Hanan, Brief for the United States as Amicus

Curiae at 1, 871 F. Supp. 415 (N.D. Ala. 1994).

256 Id. at 2.

260 id.

261 Id.

262 Id.

263 Id. at 1.

264 Id. at 3.

265 Id. at 5.

266 Id. at 8.

106
ADA's legislative history affirms that one of its

major purposes is to remove the unnecessary

segregation.267 In the brief, DOJ also cited caselaw that supports the "integration regulation,"

which affirms that States are obligated to provide services in the most integrated setting.268

One of the cases that DOJ discusses in its

amicus brief is Helen L. u. Didario.269 In this

case, six plaintiffs sued the Pennsylvania Department of Public Welfare alleging that it violated title II of the ADA by failing to provide

services to people with disabilities in the community through its attendant care program

rather than in a nursing home.279 The district

court dismissed two individuals as plaintiffs because they had been discharged from the nursing home and denied the plaintiffs' motion for

summary judgment. Plaintiff Idell S. filed a notice of appeal. The remaining plaintiffs dismissed their claims because they .no were longer

in nursing homes.271 DOJ filed an amicus curiae

brief in support of the appellant. It based its

brief on the grounds that a public entity shall

administer services, programs, and activities in

the most integrated setting appropriate to the

needs of qualified individuals with disabilities,272

and that the unnecessary segregation of individuals with disabilities is a form of discrimination prohibited by the ADA and its implementing

re gulations .273

The appellate court found that the Pennsylvania Department of Public Welfare violated the

ADA when it required the appellant to remain in

the segregated setting of the nursing home.274

The Third Circuit specifically addressed the title

II integration regulation of the ADA, and confirmed that the "ADA and its attendant regulations clearly define unnecessary segregation as a

267 Id. at 12.

268 /d. at 14-17.

289 46 F.3d 325 (3rd Cir.), cert. denied, 516 U.S. 813 (1995).

279 Id. at 327-28.

271 Id. at 328. Two plaintiffs were not parties to the summary judgment motions of the district court. Id. at 328 n.4.

272 Brief for the United States as Amicus Curiae at 4, Helen

L v. Didario, 46 F.3d 325 (3rd Cir.), cert. denied, 516 U.S.

813 (1995) (hereafter cited as U.S. Amicus Curiae, Helen L.

v. Didario).

273 U.S. Amicus Curiae at 8-16, Helen L. v. Didario.

274 Helen L v. Didario, 46 F.3d at 335-39.

97

form of illegal discrimination against the disabled."275 At the time of the Wyatt u. Hanan case,

the Third Circuit in Helen L. u. Didario was the

only appellate court that had addressed the integration regulation specifically. Relying on the

integration regulation, the Third Circuit underscored that the "ADA is intended to insure that

qualified individuals receive services in a manner consistent with basic human dignity rather

than a manner which shunts them aside, hides

and ignores them."276 The appellate court reversed the district court and ordered it to enter

summary judgment in favor of the appellant.277

In three separate cases, all involving individuals with disabilities inappropriately institutionalized in Maryland's public institutions, DOJ

filed amicus curiae briefs in support of the plaintiffs' motion for partial summary judgment under their title II claim.278 In all three cases, DOJ

argued that Maryland had "unnecessarily segregated" the plaintiffs in institutions, and failed to

provide care in the most integrated setting appropriate to their needscommunity-based programs.279 As stated in other related cases where

DOJ filed an amicus brief, the department argued that the unnecessary segregation is a form

of discrimination prohibited by the ADA and the

title II regulations.289 DOJ also challenged the

defendant's position that the cases did not fall

under title II. It stated in its brief that by failing

to serve qualified individuals with mental disabilities in the most appropriate integrated setting, the defendants violated title II of the ADA.

In support of its position, DOJ cited the statute

275 Id. at 332-33.

276 Id. at 335.

277 Id. at 339.

278 Memorandum of the United States In Support of Plaintiffs' Motion for Partial Summary Judgment on ADA Claim

And In Opposition to Defendant's Motion for Summary

Judgment, Williams v. Wasserman, 937 F. Supp. 524 (D.Md.

1996) (No. CCB-94-880) (hereafter cited as U.S. Amicus

Curiae, Williams). Plaintiffs moved for summary judgment

on behalf of a subclass of Williams plaintiffs. Plaintiffs did

not move for summary judgment on behalf of the individual

plaintiff in a related case, Hunt v. Ebberts (No. CCB-91

2564), nor on behalf of any of the plaintiffs with mental retardation in another related case, Hattie J. v. Wasserman

(No. CCB-9401187). Defendants moved for summary judgment on the ADA claims in all three cases. Id. at 1 n.2.

279 Id. at 1-2.

288 Id. at 2; 28 C.F.R. § 35.130(d) (1997).

1 0 7
and the regulations, as well as the legislative

history and Congressional intent of the act.281

The Department has issued legal positions in

other health care areas. For example, in 1997,

the Department issued a Memorandum of Intervenor on behalf of the plaintiffs in Anderson and

Garrison v. Pennsylvania Department of Public

Welfare.282 In this case, plaintiffs filed suit alleging that the State had failed to ensure that

the health maintenance organizations (HMOs)

with which it had contracted provided medical

services for eligible citizens or offered facilities

that were accessible to individuals with mobility

impairments. In addition, the plaintiffs alleged

that the State failed to ensure that when HMOs

rendered such services, necessary medical information was provided to HMO patients with

visual impairments in appropriate alternative

formats.283 The defendant asserted that title II

could not be enforced in this case.

The Department's memorandum addresses

the broad constitutional jurisdictional coverage

of title II of the ADA and "intentional discrimination" under the equal protection clause.284 In

its analysis, the Department said that Congress

intended to extend the ADA to every aspect of

society and that the discrimination against persons with disabilities was severe, and resulted

from both intentional and nonintentional conduct.285 In this case, the Department broadened

the scope of protection under title II and expanded its discussion of the title beyond its

regulations.286 DOJ wrote that in title II of the

ADA, Congress attempted to redress discrimination against persons with disabilities by mandating that "qualified individual[s] must be provided meaningful access to the benefit that the

281 U.S. Anticus Curiae at 5-12, Williams.

282 Memorandum of Intervenor United States in Opposition

to Defendant's Cross Motion for Partial Summary Judgment, Anderson v. Pennsylvania Dep't of Public Welfare,

1991 U.S. Dist. LEXIS 154924 (E.D. Pa. 1998) (No. 97 -39-

808) (hereafter cited as Anderson v. Pennsylvania, Memorandum of Intervenor, Anderson).

283 Memorandum of Intervenor at 2, Anderson.

284 In the case, the defendants alleged that the interpretation of title II is too broad and is inappropriate or has no

basis under the Constitution and the equal protection

clause. See Memorandum of Intervenor at 8-9, Anderson.

288 Id. at 3-12.

288 See id. at 14,28-30,36.

98

[entity] offers."287 This includes the benefits offered by the HMOs contracted by State governments.

Recent Legal Challenges and Research Studies

In addition to DOJ's policy letters and amicus

curiae briefs on health care issues, there have

been numerous challenges, in and out of court,

against State health care services and plans. Also,

research studies have assessed the implementation of State health care services and benefits for

individuals with disabilities. Some complaints

focus on deinstitutionalization while other cases

have involved persons with certain disabilities

who felt they were excluded from or denied certain services under State health plans or services.

For example, there have been suits against State

health care practices and services in such States

as Pennsylvania,288 Texas,289 Georgia,299 and

Iowa.291

287 Id. at 28,32.

288 See Easley v. Snider, 36 F.3d 2975 (E.D. Pa. 1994). In

this case, the plaintiffs contended that because they have

mental disabilities they should not be denied access to a

program for attendant care because of the disability. In the

program, the State allows mentally alert persons who have

physical disabilities to use surrogates in the management of

their financial affairs but prohibits a similar arrangement

for persons who are not mentally alert. The U.S. district

court held that the State's exclusion of nonmentally alert

persons from the program did not violate title II of the ADA

because disabled persons who were not mentally alert were

not simply a subgroup of the physically disabled. Rather,

their cases involved an additional handicap, severe degree of

mental instability, which rendered participation in the program ineffectual. Id. at 305-06.

289 In Elizabeth B. v. Texas Dep't of Protective and Regulatory Services Region #8 three plaintiffs alleged that the

Texas Department of Protective and Regulatory Services,

which has the responsibility for evaluating and placing individuals who are the managing conservatorship of the State

into alternative living arrangements, failed to provide

"necessary and statutorily guaranteed alternative living

arrangements for children with disabilities in the conservatorship which is the most integrated setting. The suit contends that State officials "erroneously placed the plaintiff in

the home even though children with similar and significantly more profound disabilities are living in family settings." The suit alleges that the State's department violated

title II of the ADA, specifically, 28 C.F.R. § 35.130(b)(1)(iv)

(providing different and unequal service to individuals with

disabilities than to others). "Texas Accused of Unnecessary

Institutionalization of Children," Disability Compliance

Bulletin, vol. 4, iss. 16 (1994), p. 10.

290 See L.C. v. Olmstead, No. 1:95 CV -1210, 1997 U.S. Dist.

LEXIS 3540 (N.D. Ga. 1997). In this case, the U.S. District

108
Research studies and reports also show that

persons with certain disabilities are less likely to

be placed in adequate community-based programs because the programs do not meet their

needs.292 A 1992 law review article that focused

on the treatment of the mentally ill in institutionalized versus deinstitutionalized settings

found that many mentally ill individuals remain

institutionalized because of inadequate commuCourt for the Northern District of Georgia ruled that State

mental health officials violated title II of the ADA by continuing to institutionalize two mentally retarded individuals

in a State mental hospital instead of community-based

treatment, and issued an injunction barring the State from

violating the plaintiffs' rights under the ADA. The court also

ordered the State to release one of the plaintiffs to an appropriate community-based program, and ordered that the

other plaintiff receive appropriate support services to maintain her current community placement. Id. at *12*13.

291 See Conner v. Branstad, 839 F.Supp. 1346 (S.D. Iowa

1993). In this class action suit, plaintiffs who were mentally

and physically disabled challenged the State of Iowa's system

of providing services to the class in an institutional setting

rather than in a community-based environment. The district

court dismissed plaintiffs' title II claim, holding that neither

the explicit language of the ADA, its legislative history, 28

C.F.R. § 35.130(d), nor analogous Rehabilitation Act precedent

required States to make "fundamental" or "substantial" modifications to their programs to create or expand alternative

community-based services. Id. at 1357-58 & n.19.

292 See Margaret A. Nosek and Carol A. Howland, "Personal

Assistance Services: The Hub of the Policy Wheel for Community Integration of People with Severe Physical Disabilities,"

Policy Studies Journal, vol. 21, no. 4 (1993), pp. 789-800. This

article discusses the difficulty in providing Personal Assistance Services for persons with severe physical disabilities. It

states that the "success of persons with severe physical disabilities in living independently in the community, . .depends, in part, on getting and maintaining adequate personal assistance with such tasks." A personal assistant is

someone who assists with activities of daily living to compensate for functional limitations in physical...capabilities." Ibid.,

pp. 789-90. According to the New York City Task Force on

Medicaid Managed Care, "Often, a person with a disability

requires a specialist or sub-specialist, a team including specialists, or a specialty care center to provide for their health

care. In many instances, the coordination of care from a specialist or a specialty care center is necessary in order for a

person with disability to have "an equal opportunity to achieve

the same result from a Medicaid managed care program as

those persons without disabilities. Susan M. Dooha, Director

of Health Care Process, Public Policy Department, Gay Men's

Health Crisis, letter to Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, Feb. 13, 1998, attachment, New York

City Task Force on Medicaid Managed Care, p. 3 (hereafter

cited as Dooha New York City Medicaid Managed Care letter

and Attachment).

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99

nity treatment services.293 The researcher reviewed legal cases and research studies and

found that since 1955, most seriously mentally

ill people have been less likely to find their

homes in institutions and more likely to find

their treatment alternatives in the community."294 However, many mentally ill individuals

"are still confined to institutions either because

no less restrictive options are available or because existing options are not utilized to integrate individuals with disabilities into community settings."295

In her legal analysis of numerous court cases,

the researcher noted that when a professional

has recommended community-based treatment,

but the State has not implemented the decision,

the courts have been receptive to a substantive

right to treatment claim under the due process

clause of the 14th amendment.296 However, the

researcher maintained that the lack of community services often results in the "unnecessary

confinement of [individuals] in highly restrictive

settings for lack of another place to g0."297 She

further explains that "[m]ental health professionals who continually recommend services that do not exist become frustrated and tend to

`conform their recommendations. . .to the constraints imposed by the State's inadequate service delivery system, rather than. . .exercise true

professional judgment."'298 In other words, when

many of these professionals realize that what

293 Stacy E. Seicshnaydre, "Comment: Community Mental

Health Treatment for the Mentally Ill When Does Less Restrictive Treatment Become a Right," Tulane Law Review, vol.

66 (1992) (hereafter cited as Seicshnaydre, "Community Mental Health Treatment for the Mentally Ill "). The author attributes the deinstitutionalization of the mentally ill to several

factors including the discovery of overcrowded hospitals where

neglect and brutality went "unchecked," and the emergence of

"psychotropic" medication. To facilitate deinstitutionalization,

commitment standards were heightened so that individuals

must be proved to be a threat to themselves or others before

they may be institutionalized. The article focuses on trends in

mental health care as they affect the community mental

health treatment of mentally ill people confined in institutions. Id., at 1971-74.

294 Id. at 1971.

295 Id. at 1981.

296 Id. at 1983 (quoting Thomas S. v. Flaherty, 699 F.Supp.

1178, 1195 (W.D.N.C.), Ord, 902 F.2d 250 (4th Cir. 1988),

cert. denied, 498 U.S. 951 (1990).

297 Id. (quoting Flaherty, 699 F. Supp. at 1196).

298 Id. at 1985, 1990.

109
the individual really needs does not exist in the

State, they will recommend a service that exists

or is available, although they know it is inadequate. The researcher wrote that whether the

ADA can affect these conditions is debatable.

Although she wrote that the act provides more

protection for individuals with disabilities than

ever before,299 without "adequate enforcement,"

the ADA will not "combat discrimination and

segregation" of persons with mental disabilities

adequately.399

An article published in 1996 also discussed

mental health treatment for persons with mental disabilities.30 The author concluded that

"compared to physical health care, mental health

care has been subjected to stricter limits on

utilization, higher co-payments, lower benefit

caps and more restricted types of offered services."302 For children with serious mental health

needs, "denial of access to the appropriate services can lead to unnecessary institutionalization

or family breakup."303

Some of the challenges to health care services

have centered on the restrictive provisions provided in State health insurance plans that affect

persons with disabilities. A 1993 study by the

National Council on Disability reported that a

major problem in health care for many persons

with disabilities is that "they have faced an ongoing struggle to obtain and retain the health

care coverage they need to live independently

and productively ."3" Persons with disabilities

299 Id. at 1985, 1990.

300 Id. at 1985-86. The author discusses with approval cases

like Jackson v. Fort, Stanton Hospital & Training School,

757 F.Supp. 1243, 1311 (D.N.M. 1990), in which the court

stated that "lack of available alternatives does not excuse

defendants from providing care in community settings for

those individuals whose IDTs [interdisciplinary teams] have,

in the exercise of their professional judgments, recommended community care." Seichnaydre, "Community Mental

Health Treatment for the Mentally Ill," pp. 1981-82.

301 Leonard S. Rubenstein, "Ending Discrimination Against

Mental Health Treatment in Publicly Financed Health

Care," St. Louis Law Journal, vol. 40 (1996), pp. 1-40

(hereafter cited as Rubenstein, "Ending Discrimination

Against Mental Health Treatment').

302 Id. at 315 & n. 1. 303 Id. at 315 .

304 National Council on Disability, Sharing the Risk and

Ensuring Independence: A Disability Perspective on Access to

Health Insurance and Health-Related Services, (Washington, DC: National Council on Disability, Mar. 4, 1993), p.1.

who have health insurance are "typically underinsured, with coverage packages that are oriented to acute care and that do not meet their

specific chronic and long-term care needs."305

Specifically, the study reports that 3 million persons with disabilities, or 15 percent of the disability community, do not have any form of

health insurance, and "millions more do not

have access to adequate health insurance."306

The problem with State health insurance for

individuals with disabilities surfaced in South

Carolina. Individuals and an advocacy group

filed suit against the South Carolina Health Insurance Pool (SCHIP), a nonprofit State entity

that was created to assist "uninsurable but nonindigent persons in securing reimbursements for

costs of their medical care. "307 In Doe v. South

Carolina Health Insurance Pool, the plaintiffs

alleged that SCHIP violated title II of the ADA

because it unlawfully discriminated against persons with AIDS or HIV infection by excluding

them from coverage.308 The major plaintiff was a

man diagnosed with HIV in 1985, and AIDS in

1989. He was qualified for coverage by SCHIP

because he worked and was not eligible for

medicaid or medicare. He was denied coverage

by private health insurance companies. All

health insurers authorized to issue or provide

health insurance in the State are members of the

poo1.309 The AIDS exclusion was added in 1989

by the State legislature.") The suit asked the

district court for a "declaration that the exclusion of persons with HIV infection from SCHIP

violates the ADA and is therefore unenforceable,

and for an injunction directing SCHIP to admit

Doe to the pool."3"

(hereafter cited as NCD, Sharing the Risk and Ensuring

Independence); see also "Council's Health Care Study Urges Pooling of Risk and Cost," Disability Compliance Bulletin

(LRP), vol. 3, iss. 19 (Apr. 14, 1993), p. 5.

305 NCD, Sharing the Risk and Ensuring Independence, p. 1.

306 Ibid., pp. 1-2.

297 "South Carolina 'High Risk' Pool Sued," Disability Com- pliance Bulletin (LRP), vol. 3, iss. 20 (Apr. 28, 1993), p. 3

(hereafter cited as "High Risk Pool Sued").

308 Ibid.

309 Ibid.

319 Ibid.

3" Ibid., p. 4.

100

1 0
In 1995, the district court, in Givens v. South

Carolina Health Insurance Pool, approved

SCHIP and the exclusion of persons with

HIV/AIDS from SCHIP coverage.312 The plaintiff

argued that the SCHIP policy violated title II,

although it is a nonprofit corporation. The position was that the program was created by the

State legislature, receives tax credits, and the

governor appoints members of the board.313 The

defendants argued that SCHIP is not a public

entity, and that the decision to exclude persons

with HIV/AIDS from coverage was a "valid underwriting decision. . .consistent with state

law."314 The court did not focus on SCHIP as a

public entity, but on insurers who can restrict

coverage based on "underwriting risks that are

based on, or not inconsistent with, state law."315

The court determined that because South Carolina approves the "denial of coverage of HIVrelated illnesses, the ADA was not violated."316

The plaintiff filed an appeal with the Fourth

Circuit and asked the court to examine the legitimacy of the State law. He alleged that although the ADA does allow insurers to underwrite risks based on actuarial data, the HIV exclusion in South Carolina "was written into the

law casually, with no debate and no actuarial

studies."317 In 1997, the South Carolina legisla312 "Court Allows State's High-Risk Insurance Pool to Exclude Persons with HIV," Disability Compliance Bulletin

(LRP) , vol. 7, iss. 5 (Dec. 21, 1995), p. 10 (hereafter cited as

"Court Allows State's High-Risk Insurance Pool to Exclude

Persons with HIV"). The original plaintiff (DOE) died of

AIDS-related causes and Sam Givens came forward to replace the deceased in the lawsuit. According to the LRP

article, Givens had an insurance policy, but when he developed HIV and began to make claims for HIV-related illnesses, his premiums escalated beyond his ability to pay. He

applied to SCHIP but was denied coverage because he was

HIV-positive. Ibid.

313 Ibid.

314 Ibid.

315 Ibid. 42 U.S.C. § 12201(C)(2) (1994) provides that titles I

IV of the ADA shall not be construed to prohibit or restrict

"a person or organization covered by [the ADA] from establishing, sponsoring, observing, or administering the terms of

a bona fide benefit plan that are based on underwriting

risks, classifying risks, or administering such risks that are

based on or not inconsistent with State law."

316 "Court Allows State's High-Risk Insurance Pool to Exclude Persons with HIV," p. 10.

317 Ibid. See 29 C.F.R. pt. 35, app. A, § 1630.16(f), at 371

(1997) (employer cannot deny qualified individual with a

ture deleted the provision that excluded persons

infected with HIV from coverage.318

Although a suit was not filed, disabled citizens and advocacy groups in Oregon challenged

the State's health plan because they believed

certain provisions would exclude persons with

disabilities from coverage. These citizens maintained that under its original provisions, the

Oregon Health Plan violated title II of the

ADA.319 Originally, the plan was viewed by its

supporters as a way to extend coverage to uninsured Oregonians without "significantly raising

costs."329 Basically, the Oregon Health Plan limited medical treatments paid for by medicaid.

The controversial component of the plan was its

"ranking system," whereby 688 medical conditions and their treatments were prioritized.321

Under the plan, those ranked near the top would

be covered and those ranked near the bottom

would not be covered. Advocates for persons with

disabilities challenged the prioritization as discriminatory because rankings were based on

"quality of life."322 The more a medical procedure

can improve the quality of life, the higher the

disability equal access to insurance based on disability

alone, if the disability does not pose increased risks).

319 "South Carolina Prepared to Implement the Health Insurance Portability and Accountability Act of 1996," The South

Carolina Department of Insurance Newsletter, vol. 2, iss. 2

(March-April 1997), p. 1. According to the newsletter, on Mar.

31, 1997, the South Carolina State legislature passed Senate

Bill 287, which revises the South Carolina Health Insurance

Pool. Changes from the original legislation include increasing

the maximum benefit limit, capping the premiums in most

circumstances, and deleting the provision that excludes persons infected with HIV from coverage.

319 James V. Garvey, "Health Care Rationing and the

Americans with Disabilities Act of 1990: What Protection

Should the Disabled Be Afforded," Notre Dame Law Review,

vol. 68 (1993), pp. 583-84 (hereafter cited as Garvey,

"Health Care Rationing and the ADA"). This law review

article is a lengthy discussion of the Oregon Health Plan,

including the history, intent, and overall ADA implications

of the plan. Id., pp. 1-37; Disability Advocates Force

Changes in Oregon Health Plan," Disability Compliance

Bulletin, vol. 3, iss. 19 (Apr. 14, 1993), p. 1.

320 "Disability Advocates Force Changes in Oregon Health

Plan," Disability Compliance Bulletin, vol. 3, Iss. 19 (Apr.

14, 1993), p. 5 (hereafter cited as Disability Advocates Force

Changes"). See also Garvey, "Health Care Rationing and the

ADA," pp. 6-8.

321 "Disability Advocates Force Changes," p. 1.

322 Ibid., p. 5.

101

lit
ranking.323 The advocates contended that such

rankings were discriminatory because the

"quality of life of persons with disabilities is generally viewed as lower than for persons without

disabilities, thus, they would likely be denied

equal access to health care."324 The prioritization

process was based on the responses of 1,000

Oregonians who were asked to rank various

health conditions, and not on objective medical

evidence.325

The Bush administration rejected the plan,

agreeing with the advocates that the Oregon

Health Plan violated the ADA. The State's subsequently revised plan was determined to have

also violated the ADA. The Health Care Financing Administration, the Federal agency that

oversees medicaid, "ordered Oregon to re-rank

condition/treatments without relying on data

collected with respect to returning patients to an

asymptomatic state."326 Under the Clinton administration, "the Oregon Plan was approved

only after Oregon officials agreed to abide by

alterations mandated by the Health Care Financing Administration."327 By following the

Health Care Financing Administration requirements, the Oregon Health Plan would be in

compliance with the ADA.328

New York City has started plans for a medicaid-managed-care program.329 In 1997, New

York City's Office of Medicaid Managed Care

convened a task force to develop ADA compliance guidelines. Advocacy groups that participated in the planning process noted the problems with the Oregon State plan and the difficulty the State had in receiving approval from

the Health Care Financing Administration because it did not meet the requirements of the

ADA.330 Advocates for people with disabilities

and medicaid beneficiaries submitted suggestions that included and went beyond physical

323 Ibid., p. 4.

324 Ibid.

325 Ibid.

326 Ibid.; see also Garvey, "Health Care Rationing and the

ADA," p. 1.

327 "Disability Advocates Force Changes," p. 4.

328 Ibid.

328 Dooha New York City Medicaid Managed Care letter, pp.

1-3 and Attachment, pp. 1-17.

338 Dooha New York City Medicaid Managed Care letter, p. 1.

.

and communications accessibility to health

services.331 They also addressed ADA compliance

requirements.332 In essence, "the advocates identified program issues that emerged throughout

the Medicaid managed care planning process, and experts identified barriers and proposed

constructive alternatives in health care services

for the disabled."333

These suggestions were incorporated in the

New York City Task Force on Medicaid Managed

Care. Some of the issues that the work group

proposed in the ADA compliance guidelines that

were presented to managed care organizations

who want to contract with New York City included access to specialists and specialty care

centers, member services and health education,

case management, home visits, and an ombudsman program.334 In October 1997, the city published its "Guidelines for MAMCO Compliance with ADA," which outlines guidelines for

"compliance, suggests methods for compliance,

and [provides requirements] for compliance plan

submissions

However, even when some disabled persons

are able to obtain health insurance, they find difficulty in obtaining access to the health care services. For example, in 1998, a paralyzed 32-yearold medicaid recipient from Takoma Park, Maryland, complained to the Civil Rights Division at

DOJ that Maryland's managed care health program denies her accessibility to health services.336

She has been unable to find a doctor whose office

is wheelchair accessible and equipped with "an

exam table that can be lowered to 18 inches" to

meet her needs."337 Her attorneys' position is that

the complainant's "health maintenance organization and the State of Maryland are ignoring her

rights under the Americans with Disabilities

331 Ibid.

332 Ibid.

333 Ibid., p. 2.

334 Ibid.

335 Ibid. and attachment, pp. 1 -17.

336 Avram Goldstein, "Is Managed Care Equipped for the

Disabled," The Washington Post, Apr. 22, 1998, pp. Bi, B5.

The Maryland Disability Law Center complained to the Civil

Rights Division alleging that the complainant's HMO and

the State health department "have effectively denied her

care for six months." Ibid., p. B5.

337 Ibid., pp. B1, B5.

102

112
Act."338 Maryland medicaid's managed care organizations have redirected their members from

specialty facilities (such as rehabilitation hospitals) to private physicians.339 The complainant

alleges that her HMO has yet to find a physician

(to date, she has tried four different doctors) who

can meet her needs. In one doctor's office, there

were stairs. In another office, the doors were too

"narrow for her wheelchair."340 Disability advocates say that this situation "shows the difficulties

facing individuals in medicaid programs in States

that shift to managed care without careful planning for people with disabilities and special

needs."341 One advocacy group, the National

Health Law Program, alleges that the Health

Care Financing Administration has not responded

adequately to the problems affecting persons with

disabilities in the State medicaid managed care

programs or in ensuring that these programs are

in compliance with the ADA.342

Finally, a Pennsylvania Federal district court

judge has granted class certification for a class

action suit brought by five psychiatric hospital

residents alleging that a State department of

public welfare violated title II by failing to provide them with services in the most integrated

setting appropriate.343

In its report, the National Council on Disability stated:

access to health insurance and health-related services

critically affects the ability of persons with disabilities

to pursue employment and achieve independence.

While the ADA did not resolve the problem of access

to health care coverage for persons with disabilities, it

improves access by requiring. . .the same health benefits as those without disabilities and by prohibiting

338 Ibid., p. Bl.

3" Ibid., p. B5.

340 Ibid.

341 Ibid. The article noted that in April 1998, a Federal judge

ruled that "Pennsylvania's managed care Medicaid program

violated the ADA and that the program must make sure

HMOs are free of architectural barriers."

342 Goldstein, "Is Managed Care Equipped for the Disabled,"

p. B5.

343 Kathleen S. v. Dep't of Public Welfare, No. 97-6610, 1998

U.S. Dist. LEXIS 2027 (E.D. Pa. 1998); see also "Class Certification Granted In Integrated Setting Case," Nat'l Disability L. Rep., Apr. 23, 1998, p. 21.

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insurers from treating persons with disabilities differently without actuarial justification.344

DOJ's title II regulations address some of the

concerns raised about health care benefits and

services for persons with disabilities, but its involvement in health care litigation has been limited. Although the department has issued policy

letters on health care matters, these letters do not

carry the same weight or merit the same deference as the regulations and technical assistance

materials.345 Information provided in response to

a letter does not set binding precedent in all subsequent cases and the courts have not deferred to

policy letters to the extent that they have to the

regulations or technical assistance manuals.346

Therefore, even when the department has taken a

position or developed policy on health care issues,

unless it is incorporated in the regulations or included in a technical assistance manual, it is unlikely that State and local governments will know

what the position is.

Technology and State and Local Government Web Sites

TechnologyEmerging Issues

A substantial portion of the Nation's disabled

individuals uses computers and the Internet.347

According to a 1996 report issued by the American Foundation for the Blind, 29 percent of blind

and visually impaired individuals had a computer in their homes. This compares to 25 to 40

percent of the general population.348 Approximately 38 percent of blind and visually impaired

individuals had used a computer during 1996;

344 NCD, Sharing the Risk and Ensuring Independence, p. 1.

345 Breen interview, p. 3.

346 Ibid.

347 National Council on Disability, Access to Multimedia

Technology, Washington, DC, Mar. 13, 1998, p. 52.

348 NCD, Access to Multimedia Technology, p. 53, citing American Foundation for the Blind, Comments of the

American Foundation for the Blind, Oct. 28, 1996, before the

FCC WT Docket #96-198, in the Matter of Implementation

of Section 255 of the Telecommunications Act of 1996, Access to Telecommunications Service, Telecommunications

Equipment, and Customer Premises Equipment by Persons

with Disabilities; Wirthlin Worldwide, Wirthlin Report, vol.

6, no. 7 (McLean, VA: Wirthin Worldwide, 1996); and Electronic Industries Association, U.S. Consumer Electronics

Sales and Forecast 1992-1993 (Arlington, VA: Consumer

Electronics Manufacturing Association, 1996).

103

113
and 31 percent of these individuals had access to

online services or the Internet.349 According to

the National Council on Disability, these figures

were similar to those of the general population.350 In addition, a 1996 report from an ongoing survey revealed that 8 percent of World Wide

Web users had at least one disability; and approximately one-half of these individuals had

visual impairments.351 The National Council on

Disability predicts that Internet use for individuals with visual impairments will continue to

increase, if the service is accessible.352

According to the Foundation for Technology

Access, technology can enhance individuals' opportunities to participate in a wide variety of activities.353 Technology has the potential to "level

the playing field"354 for persons with disabilities;

enable them to interact with other individuals;

and reduce the personal mobility and communication barriers they confront due to their disabilities.355 According to former Sen. Bob Dole, for

people with disabilities, whether the disabilities

are sensory, cognitive, motor, or communication,

technology can enhance mobility and "provide the

tools to speak, hear, see, write, learn, and

work."356 He added that technology fosters the

means for individuals with disabilities to "live as

fully and independently as possible and make the

349 NCD, Access to Multimedia Technology, p. 53.

350 Ibid.

351 Ibid., p. 52, citing Georgia Institute of Technology (1996),

accessed at http://www.cc.gatech.edu/gvu/user_surveys/sur

vey-04-1996.

352 NCD, Access to Multimedia Technology, p. 53.

353 Alliance for Technology Access, Computer Resources for

People With Disabilities (Alameda, CA: Hunter House Publications, 1994), p. ix (hereafter cited as ATA, Computer Resources).

354 National Council on Disability, Access to the Information

Superhighway and Emerging Technology by People With

Disabilities (Washington, DC: National Council on Disability, Sept. 30, 1996), p. xi (hereafter cited as NCD, Access to

the Information Superhighway); and National Council on

Disability, Achieving Independence: The Challenge for the

21st Century: A Decade of Progress on Disability 'Policy: Setting an Agenda for the Future (Washington, DC: National

Council on Disability, July 26, 1996), p. 109 (hereafter cited

as NCD, Achieving Independence).

355 NCD, Access to the Information Superhighway, pp. ix, xi.

356 Robert Dole, "Fulfilling America's Promise: Technology

and the Disabled," U.S. Senate, Apr. 19, 1996, p. 2 (hereafter

cited as Dole, "Fulfilling America's Promise").

same choices about their lives that their nondisabled peers can take for granted."357 Thus, it is

critical that individuals with disabilities be able to

benefit from technology and have it become a

regular part of their lives.356

Ideally, products, processes, devices, systems,

and services should be "universally designed" so

that they can accommodate people with the widest possible range of abilities, operating with

various constraints, and in numerous environments and circumstances.359 Universal design

requires that products be equitable and flexible

in use to accommodate a wide range of individual preferences as well as physical, perceptual,

communication, and cognitive abilities.360 Currently, according to the Trace Research and Development Center, "there are no universal designs or universally-designed products."361 That

is, no program, feature, service, or material in

general is accessible to and usable by all individuals; and there can be potential consequences

to individuals who are "left out."362 As a result,

individuals with disabilities could confront various access barriers.363

The National Council on Disability states

that the disability community has been publicizing the notion of "universal design" for more

than a decade, and reports that buildings and

transportation systems should be usable by persons with a wide range of disabilities.364 Barriers

confronted by persons with disabilities include

(a) signs, building directories, and other systems

that were previously silent; (b) graphics in information kiosks and other interactive sites; and

357 Ibid.

358 Alliance for Technology Access, Computer Resources for

People With Disabilities (Alameda, CA: Hunter House Publications, 1994), p. ix.

359 Greg Vanderheiden, Trace Research and Development

Center, "Universal Design: What It Is and What It Isn't,"

University of Wisconsin at Madison, May 1996, p. 1 (hereafter cited as TRDC, "Universal Design"); and http://

www.trace.wisc.edu/publications/3.html.

360 http://www.trace.wisc.edu/publications/3.html.

361 TRDC, "Universal Design," p. 1.

362 Greg Vanderheiden, "Key Issues in Assuring That National Information Infrastructure in Classrooms is Accessible," Trace Research and Development Center, February 28,

1997; and TRDC, "Universal Design."

363 TRDC, "Universal Design," p. 1.

364 NCD, Achieving Independence, p. 110.

104

114
(c) "sealed public systems," such as fare machines, automated teller machines (ATMs), and

other machines with touch screens.365 However,

despite these and other potential barriers confronted by individuals with disabilities, there are

various strategies, assistive devices and services,

and policy interventions/legislative initiatives

that can foster and provide "complete and efficient access" to information and services for individuals with disabilities.366

General Advantages of Technological

Devices and Services

According to the National Council on Disability, individuals regularly and increasingly

rely on technology to enhance functioning and

perform routine tasks.367 From eyeglasses to

telephones to remote controls for televisions, the

daily lives of individuals are shaped by technological innovation. Thus, if technological innovation proceeds in an accessible fashion, it can hold

promise for individuals with disabilities and offer them the same array of benefits as those attained by their nondisabled peers.368 Through

telecommunications, individuals can conveniently obtain instant, up-to-date information in

their homes from services (including those that

are remotely located) that are otherwise inaccessible due to transportation, architectural, and

communication barriers.369 Obtaining information from electronic media can link users to various educational and medical services; and it virtually ensures anonymity, which makes a disability invisible or irrelevant.370

365 NCD, Access to the Information Superhighway, pp. xii

and 36-41.

366 Ibid., pp. xii, 23-26; and National Council on Disability,

Access to Multimedia Technology by People with Sensory

Disabilities (Washington, DC: National Council on Disability, Mar. 13, 1998), transmittal letter from Marca Bristo,

Chairperson (hereafter cited as. NCD, Access to Multimedia).

367 NCD, Achieving Independence, p. 107.

368 Ibid.; NCD, Access to the Information Superhighway, p. 23. 369 ATA, Computer Resources, p. 118; Don Barrett,

Technology Information Specialist, Office of Communications

and Information Services, Special Education and

Rehabilitative Services, U.S. Department of Education,

telephone interview, Apr. 6, 1998, p. 2 (hereafter cited as

Barrett interview); and NCD, Access to the Information

Superhighway, pp. xi, 23, 24.

378 NCD, Access to the Information Superhighway, p. xi; and

Barrett interview, p. 2.

In addition, personal isolation can be diminished as individuals "congregate" and share their

interests on line.371 Furthermore, students can

apply for financial aid and access a tutor while

on line, and enroll in "distance learning

courses."372 Electronic information networks also

enable individuals to (a) send an emergency

alert to everyone in one's family simultaneously

and have it arrive moments later; (b) obtain tax

forms and computational assistance from accountants who provide online help; (c) search job

postings confidently; (d) preview cars before visiting a dealer; (e) obtain a traffic report from a

monitored location; and (f) select a vacation spot,

book the flight, and reserve the hotel room by

clicking on a "mouse."373 Over time, "as the novel

becomes the ordinary," the provision and cost of

such technology becomes "standard fare in

American business and culture."374

Online employee training programs can be

less costly than traditional professional development, obtained when and where needed, and

can improve work performance and create fewer

interruptions in the work environment.375 A

1997 report showed that the average time to

train someone via computer technology was about half that of traditional instructor-led

training.376 Advances in technology create the

option to work from one's home in a rural area,

correspond with (and even supervise) co-workers

in a distant city via e-mail, and receive and send

documents on fax machines.377 High-speed, "high

bandwidth communication channels" enable scientists to conduct experiments in a laboratory

located across the globe; and collaborate efforts

and publish findings with remotely-located colleagues.378 Individuals with cerebral palsy, for

instance, who are unable to operate delicate instruments, and conduct chemical experiments in

a laboratory using fragile glassware, could po371 NCD, Access to the Information Superhighway, p. 23.

372 Ibid., pp. 6 and 24.

373 Ibid., pp. 3-5

374 NCD, Achieving Independence, p. 107.

375 NCD, Access to Multimedia, p. 15.

376 Ibid.

377 NCD, Achieving Independence, p. 108; and Robert Dole,

"Fulfilling America's Promise: Technology and the Disabled," U.S. Senate, Apr. 19, 1996, p. 2.

378 NCD, Access to the Information Superhighway, p. 6.

105

115
tentially be barred from achieving career goals

as scientists. However, with simulations of the

instruments and glassware on a computer

screen, these individuals can conduct experiments using keyboard control or other interfaces

to meet their needs.379

Technology-related Assistance

In 1988, Congress acknowledged the powerful

role that assistive technology and services can

have for people with disabilities by passing the

Technology-Related Assistance for Individuals

with Disabilities Act of 1988, popularly referred

to as the "Tech Act."385 The Tech Act was one of

the first pieces of Federal legislation to address

the needs of all individuals with disabilities.381

With passage of the Tech Act and amendments

to the act in 1994, Congress sought to address

the inaccessibility for individuals with disabilities of existing and developing telecommunications and information technologies, as well as

the problem of inadequate information on the

use of assistive technology resources.382

The Tech Act also clarifies that assistive

technology services include:

378 Ibid., p. 24.

388 Pub. L. No. 100-407, 102 Stat. 1044 (codified as amended

at 29 U.S.C. § 2201-2288 (Supp. 1996)) Congress amended

this statute in 1994. Technology-related Assistance for Individuals with Disabilities Amendments of 1994, Pub. L. No.

103-218, 108 Stat. 50 (Supp. II 1996) (codified in 29 U.S.C. §

2201 note and in scattered sections of 29 U.S.C. See also

Rehabilitation Engineering Society of North America

(RESNA), The Tech Act Accomplishments to Date (Arlington,

VA: Rehabilitation Engineering Society of North America,

September 1996), p. 3 (hereafter cited as RESNA, The Tech

Act Accomplishments).

381 Behrmann, "AT for Students with Mild Disabilities," p. 72.

382 29 U.S.C. § 2201(a)(7) (Supp. II 1996) states that: "Many

individuals with disabilities cannot access existing telecommunications and information technologies and are at risk of

not being able to access developing technologies. The failure

of Federal and State governments, hardware manufacturers,

software designers, information systems managers, and

telecommunications service providers to account for the

specific needs of individuals with disabilities results in the

exclusion of such individuals from the use of telecommunications and information technologies and results in unnecessary costs associated with the retrofitting of devices and

product systems." See also Behrmann, "AT for Students with

Mild Disabilities," p. 72.

(A) the evaluation of the needs of an individual with a

disability, including a functional evaluation of the

individual in the individual's customary environment;

(B) purchasing, leasing, or otherwise providing for the

acquisition of assistive technology devices by individuals with disabilities;

(C) selecting, designing, fitting, customizing, adapting, applying, maintaining, repairing, or replacing of

assistive technology devices;

(D) coordinating and using other therapies, interventions, or services with assistive technology devices,

such as those associated with existing education and

rehabilitation plans and programs;

(E) training or technical assistance for an individual

with disabilities, or, where appropriate, . . . the family

members, guardians, advocates, or authorized representatives of such an individual; and

(F) training or technical assistance for professionals

(including individuals providing education and rehabilitation services), employers, or other individuals

who provide services to, employ, or are otherwise substantially involved in the major life functions of individuals with disabilities.383

The Tech Act recognized the importance of

assistive technology in the lives of persons with

disabilities and was the premiere piece of legislation to define assistive technology devices and

services.384 The Tech Act explicitly mentions that

these provisions are "essential to enable persons

with disabilities to (a) have greater control over

their lives; (b) participate in, and contribute

more fully to activities in their home, school,

work environments; (c) interact with their nondisabled peers; and (d) benefit from opportunities taken for granted by others."385

As amended in 1994, the Tech Act requires

States to perform "systems change" and advocacy activities intended to modify laws, policies,

and practices to increase access of individuals

with disabilities to assistive technology.386 For

example, States must work to reach underrepresented and rural populations to improve their

383 29 U.S.C. § 2202(3)(A)(F) (Supp. 1996).

384 Barbara Crowl and Karen Franklin, "A New and Improved 'Tech Act'," accessed at http://www.resna.org/tap/atq

/newtech.htm.

385 29 U.S.C. § 2201(a)(3)(A)(D) (Supp. II 1996).

388 Id. § 2211 .(Supp. II 1996) (setting forth the systems

change and advocacy activities States receiving grants from

Secretary of Education are to undertake); RESNA, The Tech

Act Accomplishments, p. 3.

106

116
accessibility to assistive technology services.387

To date, State projects have conducted aggressive outreach to Hispanic, black, and Native

American populations388 and have made efforts

to address concerns related to rural districts

through various approaches.389 The Tech Act

program is administered by the U.S. Department of Education, Office of Special Education

and Rehabilitation Services through the National Institute on Disability and Rehabilitation

Re se arch.399

According to the National Council on Disability, within the past decade, technological innovations have fostered the potential for a level

of independence and productivity that was previously unattainable by persons with disabilities.391 For instance, rapid advances in technological capability have created the means for 54

million people with sight, auditory, manual, or

cognitive impairments to access computer

screens and keyboards.392 Because "digital information" is neither "visual, auditory, nor tactile," it can be translated (with appropriate programming) into any of these forms to match an

individual's sensory or manual needs.393

Americans with Disabilities Act

In title II of the ADA, auxiliary aids and

services are defined to include a wide range of

services and devices that are essential to ensur387 RESNA, The Tech Act Accomplishments, p. 5.

388 Ibid. Specific State outreach grantees endeavors include:

disseminating information about assistive technology to

Hispanic consumers; developing comprehensive plans that

target disabled blacks of all ages to increase their access to

assistive technology; and utilizing a community liaison to

address the needs of Native Americans. The Tech Act allows

States the flexibility to determine specific approaches to

accomplish these endeavors. Ibid.

389 RESNA, The Tech Act Accomplishments, p. 5. Services to

improve accessibility to technological services for disabled

individuals in rural localities include use of mobile vans and

establishment of numerous regional centers. The Tech Act

allows States the flexibility to determine specific approaches

to accomplish these endeavors. Ibid.

399 Barbara Crowl and Karen Franklin, "A New and Improved 'Tech Act,"' accessed at http://www.resna.org/tap/atq

/newtech.htm.

391 NCD, Achieving Independence, p. 107.

392 NCD, Access to Multimedia Technology, Letter of Transmittal.

393 Ibid.

BEST COPY AVAILABLE

ing that equally effective communication takes

place with respect to persons who have auditory,

visual, or speech impairments.394 The regulations and the analysis also list several potential

aids and services.395 The analysis of the regulations mentions that the examples are intended

to be an illustrative rather than an "all inclusive

or exhaustive catalogue" of potential devices.396

RESNA argues that the aids and services can

include "state of the art devices and emerging

technology."397 However, RESNA acknowledges

that entities covered by title II of the ADA are

not mandated to use the most recent or most

advanced technologies as long as the auxiliary

aid or service that is selected affords effective

communication.398

According to RESNA, the title II regulations

indicate that devices such as voice recognition

systems, automatic dialing telephones, and infrared and other light control systems are means

to promote access to and participation in services

and programs.399 However, RESNA is concerned

that DOJ does not consider these devices as

auxiliary aids or services that are essential for

effective communication.499 According to DOJ,

under the ADA regulations, "effective communication" is a term of art that applies only to communication between the covered entity and a

person who has a disability that affects speech,

hearing, or vision. The term "auxiliary aids and

services" encompasses the range of devices necessary to ensure effective communication between a covered entity and a person who has a

hearing, speech, or vision impairment. Some

394 See 28 C.F.R, pt. 35, app. A, § 35.104, at 467. See also

Robert R. Williams, "ADA and A.T.: What the Final Regulations Say (Title II)," p. 1, http/www/resna.org/tap/atq/ada

at2. htm.

395 See 28 C.F.R. § 35.104 (1997); 28 C.F.R., pt.. 35, app. A,§

35.104, at 467. See also Robert R. Williams, "ADA and A.T.:

What the Final Regulations Say (Title II)," p. 1, http/www/

resna.org/tap/atq/adaat2.htm.

396 28 C.F.R., pt. 35, app. A, § 35.104, at 467. See also Robert

R. Williams, "ADA and A.T.: What the Final Regulations

Say (Title II)," p. 1, http/www/resna.org/tap/atq/adaat2.htm.

397 Robert R. Williams, "ADA and A.T.: What the Final

Regulations Say (Title II)," p. 1, accessed at http://www/

resna.org/tap/atq/adaat2. htm.

398 Ibid.

399 Ibid.

4°9 Ibid.

107
uses of advanced technology fit within this definition, but many do not. The fact that such tech- nology does not fit within the concept of

"effective communication" does not mean that it

is not required by the ADA. Using commercially

available technology to enable a person with a disability to do a job or participate in a program

may be required as a "reasonable accommodation" or a "reasonable modification," depending

on the context, to provide equal opportunity to

people with disabilities. In addition, to the extent that such devices are fixed or built into the

structure of a building, they may be included in

the ADA Standards for Accessible Design, which

governs the new construction of (or alterations

to) buildings and facilities subject to the ADA.401

An architect in DOJ's Disability Rights Section stated that as new technology emerges, ADA standards should be updated and improved, much as building codes are changed to

incorporate advances in the industry.402 Standards and guidelines should be on a cyclical review and modification process. Standards should

not be changed in terms of how stringent they

are because they were not designed to accommodate all persons with disabilities.403 Accessibility

and cost should be balanced.404

With the support of assistive technology, individuals with disabilities have learned to communicate more effectively, develop their organizational skills, improve their ability to process

information, and control their environments.405

Assistive technology alone cannot eliminate the

burdens and challenges faced by individuals

401 DOJ Comments, July 24, 1998, pp. 8-9.

402 Ellen Harland, Architect, DRS, CRD, DOJ, interview in

Washington, DC, Apr. 14, 1998, p. 4 (hereafter cited as Harland interview).

403 Ibid.

404 Ibid. The ADA Standards for Accessible Design implement the ADA requirements that buildings and facilities be

designed and constructed to be readily accessible to people

with disabilities. The ADA standards apply only to elements

that are a fixed part of a building or facility. The ADA standards may require the use of certain building elements that

utilize technological advances, but they do not govern the

development of new technology or the use of technology in

any context other than building design. DOJ Comments,

July 24, 1998, p. 9.

403 Judith Fein, "A History of Legislative Support for Assistive Technology," Journal of Special Education Technology,

vol. 13 (Spring 1996), no. 1, p. 1.

with disabilities.406 However, it is increasingly

becoming effective in accomplishing this objective as well as eliminating stereotypes about

persons with disabilities.407

Financial Barriers Associated with

Assistive Technology

Cost can be a major barrier for persons with

disabilities to obtain access to assistive technology. According to a disability advocacy group,

expenditures for adapted computers, communication devices, switches, and other technological

aids that enable individuals with disabilities to

participate in society can be substantia1.408 For

instance, environmental control units can cost as

much as $6,500.400 Similarly, TTYs could range

in price from $200 to $6,000.410 In 1996, former

Kansas Sen. Robert Dole expressed concern that

"thousands of the Nation's disabled individuals"

cannot afford assistive technologies, some of

which costs thousands of dollars.411 In response, Senator Dole and Senator Conrad sponsored a

provision in the Balanced Budget Act to allow

Medicare beneficiaries to use their own funds to

supplement medicare's payments for standard

technologies, so that they can afford the more

sophisticated devices.412 Similarly, the Kansas

legislature also recognized that financial barriers could preclude access to assistive technology

by persons with disabilities; and they thereby

authorized an annual $100,000 appropriation to

help pay for technology.413 Limited funding is

also available through various Federal pro- grams.414

4°8 Robert R. Williams, "Assistive Technology and People

with Disabilities: Separating Fact From Fiction," p. 1, ac- cessed at http://www.resna.org/tap/atq/sepfact.htm.

407 Ibid.; and Robert R. Williams, "Assistive Technology:

Making It Work For People on the Job," p. 1, accessed at

http://www.resna.org/tap/atq/makingit.htm.

4°8 Council for Exceptional Children, CEC Today, vol. 3, no 2

(August 1996), p. 1.

409 ATA, Computer Resources, p. 238.

410 Ibid., p. 244.

411 Dole, "Fulfilling America's Promise," p. 2.

412 Ibid.

413 Ibid.

414 Mary Male, Technology for Inclusion: Meeting the Special

Needs of All Students, 3rd ed. (Boston: Allyn and Bacon, 1997),

p. 155 (hereafter cited as Male, Technology for Inclusion).

108

118
Examples of Federal Initiatives

U.S. Department of Education

The U.S. Department of Education (DOEd)

considers "universal accessibility" to information

to be a priority for the agency's customers (as

well as employees), including those with disabilities.415 The Department stresses that it is obligated to acquire computer hardware, software

applications, and other information technology

that are accessible by users with disabilities.416

DOEd's Assistive Technology Team has issued

accessibility requirements that are incorporated

in all software development contracts,417 and as

of 1998, any software developed for DOEd under

contract must meet accessibility requirements

such as:

provide keyboard access to all functions of an

application (e.g., keyboard equivalents to all

mouse actions);

include clear and precise instructions for the

use of keyboard functions;

include clear and precise labels for all icons;

and

provide pull-down menu equivalents (that are

keyboard accessible) for icon functions.418

U.S. Department of Defense

The U.S. Department of Defense (DOD) established a goal to increase the representation of

individuals with disabilities to 2 percent of its

employees.419 To support this goal, in 1990, DOD

authorized $10.7 million (over a 4-year period)

for the Computer/Electronic Accommodations

Program (CAP), which was the "largest and most

innovative initiative" in the Federal Government

to accommodate individuals with disabilities.429

415 U.S. Department of Education, "Requirements for Accessible Software Design," Version 1.1, Mar. 6, 1997, p. 1 (hereafter cited as DOEd, "Requirements for Accessible

Software Design").

416 Ibid. 417 Judith Heumann, Assistant Secretary for Special

Education, and Marca Bristo, Chairperson, National Council

on Disability, letter to CEOs of IBM, Netscape, Novell, Oracle,

and Sun Microsystems, Mar. 9, 1998, pp. 4-5 (hereafter cited

as Heumann/Bristo letter)., p. 2; and DOEd, "Requirements

for Accessible Software Design," p. 1.

418 DOEd, "Requirements for Accessible Software Design," pp.

1-2.

415 DOD, Computer/Electronic Accommodations Program,

brochure, p. 1.

420 Ibid.

Additional funds have been appropriated to support the CAP program through 1999. The program is administered by DOD's Defense Medical

Systems Support Center; and the major provisions are:

purchase devices to make computers and

telecommunications systems accessible to

employees with disabilities;

fund sign language interpreters, readers,

and personal assistants for employees attending training classes of 2 or more days;

provide "experts" who can solve accessibility

problems related to computer hardware and

software and other "adaptive technology";

and

offer training and educational support.421

Overall, the CAP's provisions are intended to

make DOD's work environments more accessible

to employees with visual, auditory, dexterity, and

cognitive impairments.422 The program is based

on the philosophy that with the appropriate accommodations, "people with disabilities have the

power to excel."423 Since the program's inception

in October 1990 through October 1994, the CAP

office provided more than 6,000 accommodations

"throughout the DOD community."424

State and Local Government Web Sites

Many State and local government agencies

impart information as a service to the public

through networks such as the Internet. The California Department of Rehabilitation, North Carolina Department of Human Resources, and the

Rhode Island Office of Rehabilitation Services are

examples of State agencies that use the Internet

to provide information on their programs and

services.425 The ADA's mandate that public entities not deny individuals with disabilities the opportunity to participate in or benefit from any of

421 Ibid.

422 Ibid.

423 Ibid.

424 Ibid.

425 See http: / /www.catsca.com /; http://www.mindspring.com/

ncatp/; and http://www.ors.state.ri.us/, as examples of Web

sites that describe State agencies' programs and services, from

Richard W. Riley, Secretary of Education, Dear Colleague

letter to each school district in the Nation on the importance

of providing accessible technology to students with disabilities,

Oct. 7, 1997 (hereafter cited as Riley letter).

109

119
their services and activities426 applies to information that State and local government entities provide through electronic media. Consequently, to

comply with the ADA, State and local governments that use the Internet to provide information about their programs, services, and other

provisions must ensure that their Web pages, or

the information provided therein, are accessible to

persons with disabilities.

The title II regulations stipulate that public

entities cannot offer disabled individuals separate services that are not equal to, as effective

as, or do not lead to the same level of achievement as services provided to others.427 Unless

public entities can find suitable substitutes for

Internet services, they must enable persons with

disabilities to take advantage of all benefits they

make available to others through the Internet.

For instance, to ensure accessibility of the Internet by persons with disabilities, DOJ mentioned

in a technical letter that public entities could

provide Web sites that are compatible with Lynx

browsers and/or in text (i.e., screen-readable)

format rather than exclusively in graphic formats.428 In information provided to the Commission, however, DRS staff indicates that "[t]here

is as yet no consensus as to technical standards

for making websites accessible to people with

disabilities, including those with impaired vision

or hearing."429

If a public entity cannot provide accessibility

to its information via the Internet or World Wide

Web, it may offer Web page information in other

accessible formats, such as Braille, large print,

and/or audio, for those with visual imp airments.430 Such aids and services that make visu428 28 C.F.R. § 35.130(a) (1997).

427 Id. §§ 35.130(b)(1)(ii),(iii) (1997).

428 Deval L. Patrick, Assistant Attorney General, CRD, DOJ,

letter to Tom Harkin, U.S. Senate, re: accessibility of Web

pages to people with visual disabilities, Sept. 9, 1996,

(hereafter cited as Patrick letter).

428 John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, June

3, 1998, DRS Response to Commission's Information Request, p. 15.

438 Patrick letter, p. 1. Covered entities under the ADA are

required to provide effective communication, regardless of

whether they generally communicate through print media,

audio media, or computerized media such as the Internet.

Covered entities that use the Internet for communications

regarding their programs, goods, or services must be preally delivered materials accessible to persons

with impairments, must be furnished where

necessary to assure effective communication,

unless this provision results in undue burden or

fundamental alteration of a program.431

Barriers Associated with Web Sites on the Internet

Ideally, Web sites on the Internet should be

universally designed so that they can accommodate people with the widest possible range of

abilities, operating with various constraints, and

in numerous environments.432 Universal design

requires that Web pages be compatible with the

assistive technology used by persons who cannot

access and use computer applications directly.

According to the Trace Research and Development Center, "there are no universal designs or

universally designed products." Consequently,

individuals with disabilities generally face various barriers when attempting to access State

and local governments' Internet services.

According to DRS staff, determining how to

make information accessible to people with disabilities requires consideration of technological

feasibility, degree of burden, and whether information is available elsewhere and in another

format.433 Presently, there is no means of providing access to computers or to the Internet

that is accessible to all people with disabilities.

For instance, a variety of computer programs

and Web sites on the Internet that require multiple keystrokes may be burdensome for persons

with disabilities to access; and adaptations and

accommodations for persons with limited manual dexterity may not be sufficient for persons

with visual impairments. Because of these technological limitations, some individuals with dispared to offer those communications through accessible

means as well. Thus, a public entity, regardless of whether

it provides information via the Internet or World Wide Web,

also must offer the information through accessible means,

such as Braille, large print, or audio. DOJ comments, July

24, 1998, p. 9.

431 Patrick letter, p. 1. See also 28 C.F.R. §§ 35.150(a)(3),

35.164 (1997) (undue burden provisions regarding program

accessibility and communications, respectively).

432 Greg Vanderheiden, Trace Research and Development

Center, "Universal Design: What It Is and What It Isn't." University of Wisconsin at Madison, May 1996, p. 1 (hereafter cited as TRDC, "Universal Design").

433 DRS Staff November 1997 interview, statement of Wodatch, p. 6.

110

120
abilities may be denied access to some electronic

and information technology.434

Although the World Wide Web can be an effective tool for learning and communicating, it

relies on graphics, images, and enhanced video

and audio capabilities to convey information.435

Consequently, entire Web pages or portions

thereof that are not text based can be beyond the

reach of persons with visual impairments, despite their use of screen readers.436 Similarly,

individuals with hearing impairments are

barred from fully accessing audio materia1.437

These sophisticated technological capabilities

can prevent full access to electronic information

networks for disabled individuals, unless

"accessibility is built into the technology. "438

434 See ibid.

435 National Center for Accessible Media, "The Web Access

Project: Access to Multimedia on the Web," November 1997,

p. 1 (hereafter cited as NCAM, "The Web Access Project").

438 Ibid., p. 1; NCD, Access to the Information Superhighway,

p. 30; and NCD, Access to Multimedia Technology, p. 18.

Web sites that are primarily text based pose few limitations

for individuals with visual or hearing impairments. However, individuals with these impairments can be denied the

opportunity to obtain information from the increasing number of Web sites that include sound, graphics, videos, and

other newly developed technologies. See NCAM, "The Web

Access Project," p. 1. According to the NCD, a major challenge for individuals with sensory disabilities is the "current

evolution" of Web sites, as they move from a text-based interface to a multimedia, multimodal environment. National

Council on Disability, Access to Multimedia Technology, ,by

People with Sensory Disabilities (Washington, DC: National

Council on Disability, Mar. 13, 1998), p. 18 (hereafter cited

as NCD, Access to Multimedia Technology).

437 NCAM, "The Web Access Project," p. 1; NCD, Access to

the Information Superhighway, p. 36; and NCD, Access to

Multimedia Technology, p. 18

438 NCD, Access to the Information Superhighway, pp. ix, 31,

and 36. If accessibility is not built in, then individuals with

disabilities need to secure potentially costly hardware and

software adaptations. See NCD, Access to the Information

Superhighway, p. 31. In contrast, with "built-in access," products or systems are designed so that they can be accessed and

used without any assistive technologies. Ibid., p. 51. Built-in

access ensures that there is no delay between the time a device is released for general use and the time access adaptations are developed. Ibid., p. xiv. According to NCD, "the user

is not left without access because third-party manufacturers

deem the market for access devices too small." Ibid., p. xiv.

With built-in access, a public entity, for instance, can place

multimedia information on a computer screen that includes (a)

a description track or (b) a caption track which allows visual

information to be presented auditorily. Individuals with different abilities, limitations, and preferences can chose the presentation format that matches their needs. See ibid., p. 51. A

Technology to access Web sites and to display

and transmit information on the World Wide

Web develops and changes rapidly. Consequently, regulations can become obsolete soon

after they are published.439 The rapid rate of development also makes it difficult for vendors to

create the "access technologies" that keep pace

with new information technologies. As new software is released to present information over the

Internet, for instance, several months can transpire without solutions or approaches for disabled persons to access such information.440 Most

of the new technological developments create

problems for persons with disabilities, especially

when hardware/software designers wait to provide guidance on issues of accessibility until

their products are finalized.

Lack of DOJ Guidance to State and Local

Government Entities on Web Site Accessibility

DOJ has been faulted for not being sufficiently proactive in addressing the issue of Web

site accessibility.441 DOJ has stated that "the

Internet is a valuable sources of information and

. . . people with disabilities should have access to

it as effectively as people without disabilities."442

However, to date, DOJ has not issued any accessibility standards for Web sites443 and has issued

only one policy letter, on the issue of Web site

accessibility.444 DRS has not received any complaints about Web sites provided by public entities or otherwise.445 The Special Legal Counsel

for DRS, the issue of Web site accessibility first

major hurdle to achieving built-in access is that it may not be

possible to accommodate each type, severity, and combination

of disabilities. Ibid., p. xv.

438 DRS Staff November 1997 interview, p. 6, statement of

Savage.

440 NCD, Access to the Information Superhighway, pp. 30-31.

441 See Andrew Imparato, General Counsel and Director of

Policy, National Council on Disability, interview in Washington, DC, Oct. 20, 1997, p. 7.

442 Patrick letter, p. 2.

443 Jim Bostrom Architect, Technical Assistance Unit, DRS,

CRD, DOJ, interview in Washington, DC, Apr. 16, 1998, p. 3

(hereafter cited as Bostrom interview).

444 Breen interview, p. 6, referring to Deval Patrick, Assistant Attorney General, CRD, DOJ, letter to Tom Harkin,

U.S. Senate, re: Application of the ADA to "web pages" on

the Internet, Sept. 9, 1996.

445 Breen interview, p. 6.

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arose about 2 years ago and is not a wellestablished area. DRS intends to monitor it

closely.446

The one policy/technical letter in which DRS

addressed Web site accessibility stated that "[c]overed entities that use the Internet for

communications regarding their programs,

goods, or services must be prepared to offer

those communications through accessible means

as well."447 Thus, DRS does not appear to require

full Web site accessibility for individuals with

disabilities, only requires that the information

provided through the Internet be made equally

accessible to individuals with disabilities

through other means.

Explaining why DRS appears to consider

printed information, which generally takes

longer to receive, as an acceptable substitute for

instant information from a Web site, the Special

Legal Counsel said that the policy/technical letter on Web site accessibility did not constitute

DRS' definitive position.448 He added that the

letter did not deal with a title II entity and that

private businesses are not necessarily required

to make all of their information, particularly advertising, accessible. In contrast, he said, public

entities, are providing services, which should be

accessible. Although he acknowledged that

printed materials obviously lack the convenience

of Web information, the Special Legal Counsel

said that the argument on the other side is that

Web sites are merely an alternative form of providing services to individuals and the ADA only

requires that the information be accessible to

persons with disabilities in some other format,

such as publications.449 Thus, it may not be essential for persons with disabilities to have Web

site access if the same information is provided in

other ways.

446 447 Patrick letter, p. 1.

448 Breen interview, p. 6. See also John Wodatch, Chief,

DRS, CRD, DOJ, letter to Frederick D. Is ler, Assistant Staff

Director, OCRE, USCCR, June 3, 1998, DRS Response to

Commission's Information Request, p. 15. ("The letter to

Senator Harkin concerning Internet accessibility is an interim response to a complex, rapidly evolving issue. We hope

to issue more definitive, comprehensive guidance at a later

date.")

448 Breen interview, p. 6.

The Special Legal Counsel said that technology changes so rapidly that it is difficult for the

regulatory apparatus to respond quickly enough,

and further, the government must regulate care- fully in order not to hamper technological

growth. A DOJ architect said that some DRS

staff want to develop Web site accessibility

guidelines, but added that it would be difficult to

do so, because Internet technology is constantly

growing and changing.459 Any guidance that

DOJ eventually developed would need to stay

relevant over time. This could be accomplished by framing the guidance in terms of what

"access" means rather than by providing specific

technology recommendations.451

DRS has not provided much technical assistance related to Web site accessibility. The National Institute on Disability and Rehabilitation

Research has produced some relevant technical

assistance materials and a Boston television station, WGBH, has a Web site that also offers a lot

of information. DRS has not been approached by

any State or local governments for technical assistance and guidance, but has been approached

by other Federal agencies as to how they can

make their Web sites accessible. DRS advised

them that they should offer a text-only option, as

DOJ provides on its Web sites. DRS monitors

what the National Institute on Disability and

Rehabilitation Research does in this area.452 For

instance, in 1996, DRS staff recommended that

NIDRR fund research on accessibility problems

and the World Wide Web. DRS staff recommended a study that would define the nature

and extent of barriers to Web sites that individuals with disabilities could confront, identify

potential solutions and evaluate costs, and establish a mechanism to provide guidance and

technical assistance to software developers and

Internet service providers.453

458 Bostrom interview.

451 Ibid.

452 Breen interview, p. 7.

453 John Wodatch, Chief, DRS, CRD, DOJ, letter to Frederick D. Is ler, Assistant Staff Director, OCRE, USCCR, Feb. 6,

1998, attachment: "ADA Related Research Issues for Discussion: Accessibility Problems and the World Wide Web,"

DOJ, DRS, Response to U.S. Commission on Civil Rights,

Preliminary Information Request, no. 6 (hereafter cited as

"ADA Related Research Issues for Discussion".

112

122
Other Activities Relating to Web Site Accessibility

With hundreds of new Web sites being added

every day, this issue will become more urgent as

time goes by. Information disseminated by State

and local government entities through the Internet must be accessible by individuals with

disabilities, as part of the ever-growing number

of Internet users. Although DOJ has not issued

any policy guidance on public entity Web site

accessibility for individuals with disabilities,

several other agencies and organizations have

attempted to address this emerging issue.

The Department of Education has issued accessibility requirements to be incorporated in all

of the department's software development contracts. These guidelines stress the department's

obligation to acquire information technology

components that would be accessible to use by

individuals with disabilities.454 In addition, Secretary of Education Richard W. Riley, in a letter

to every school district to the Nation, has urged

access to information technology by all students,

including those with disabilities. The letter was

accompanied by a technical assistance package

that included information on compliance with

the ADA in purchasing and modifying computer

software and hardware.455

The National Council on Disability also has

published various technical recommendations to

make Web sites accessible for persons with disabilities and, with the Department of Education,

has recommended a partnership among software

companies in developing new material that

would meet accessibility requirements. The Department of Education and the National Council

on Disability argue that accessible Web sites can

be developed without hindering the creative efforts of Web page designers and that such technology and software can contribute to breaking

the barriers that hinder education and employment efforts by individuals with disabilities.456

Some of their general suggestions include:

use "alternative text" attributes to describe

what graphical images represent;

454 U.S. Department of Education, "Requirements for Accessible Software Design," version 1.1, Mar. 6, 1997, p. 1 (hereafter cited as DOEd, "Requirements for Accessible

Software Design"). 455 Riley letter and attachment. 456 Heumann/Bristo letter, pp. 4-5.

avoid bit-mapped text that cannot be interpreted by a screen reader; or provide an

ASCII-based alternative text;457

to assist individuals with visual and cognitive/language impairments, use an alternative/supplemental presentation that does not

rely on sight abilities (e.g., auditory format)

when presenting visual information;

to benefit individuals with hearing and cognitive/language impairments, present auditory

information in an alternative/supplemental

mode that does not require hearing; and

to assist individuals with physical and cognitive/language impairments, include an alternate mechanism (e.g., "scanning" or "keyboard

navigation") that enables individuals to access

the selected information when constructing

electronic media that require fine movement

control and physical dexterity.458

In April 1997, a partnership among the World

Wide Web Consortium, the White House, the

Department of Education, and the National Science Foundation launched the Web Accessibility

Initiative to promote Internet and Web site access for individuals with disabilities.459 Issues

covered by the Web Accessibility Initiative include: "technology developmentprotocols and

data formats; tools supporting content in formats

useable by persons with disabilities; technology

guidelines; educational outreach; and research

and advanced development."460 In February

1998, the Web Accessibility Initiative released

draft guidelines to assist Web site developers in

designing accessible Web pages.461 According to

457 NCD, Access to Multimedia Technology, p. 27. 458 NCD, Access to the Information Superhighway, p. 45. In

addition, the National Center for Accessible Media (NCAM)

participates in the Web Access Initiative (WAI), which provides support to online service providers and Web site architects, and educates all members of the "Web community"

about the importance of addressing accessibility when developing new products and services. WGBH, "The Web Access Project: The CPB/WGBH National Center for Accessible

Media" brochure. 458 National Council on Disability, National Disability Policy: A Progress Report, July 26, 1996-October 31, 1997

(Washington, DC: National Council on Disability, Oct. 31,

1997), p. 27 (hereafter cited as NCD, National Disability

Policy). 488 Heumann/Bristo letter, p. 2. 461 Web Accessibility Initiative, "Web Accessibility Initiative

Draft Guidelines Make Web More Accessible," press release,

113

123 BEST COPY AVAILABLE
the Director of the Web Accessibility Initiative

International Office, the guidelines are intended

to be a "key reference for web authors and site

builders" to ensure that their Web sites can be

"reached by the broadest possible audience. "462

The technical guidelines focus on strategies to

improve (a) the coding language (HTML 4.0) of

Web pages,463 (b) page layout formats, and (c)

Web site navigation.464

The National Federation of the Blind has issued guidelines to ensure maximum accessibility

and usability of Web pages by visually impaired

individuals.465 Some of the federation's suggestions for Web pages include: (1) layout should be

simple and side-by-side presentation should be

avoided; (2) screen access technology used by

visually impaired individuals should show information on a computer, one line at a time,

reading across, because information presented in

columns could be confusing, especially if it is encountered unexpectedly; and (3) bulleted lists

should be used rather than long text descriptions

that tend to clutter screens without providing

useful information.466 In addition, when "image

maps" are used on the Web pages, an alternate

means for selecting the items contained within

the maps should be provided. Information on a

Web page can be placed above or below an image

map, for instance, and should be accompanied by

instructions for the user.467

Feb. 3, 1998 (hereafter cited as WAI Press Release). The

technical guidelines focus on strategies to improve (a) the

coding language (HTML 4.0) of Web pages, (b) page layout

formats, and (c) Web site navigation.

462 WAI Press Release, p. 1.

463 The use of HTML 4.0 allows for more structured forms

and form menus, and better support for keyboard navigation. According to the American Foundation for the Blind,

the use of HTML 4.0 can ensure "equal access to a great

deal of Web content" for visually impaired individuals and

others who rely on keyboard navigation or text-only displays. See WAI Press Release, p. 2. The Royal Institute for

the Blind reported that the improvements of HTML 4.0 for

Web sites ensures the inclusion of disabled indiViduals into

the "World Wide Web community." Ibid.

464 WAI Press Release, p. 1.

465 National Federation of the Blind, "Eight Guidelines For

Web Page Accessibility," no date (hereafter cited as NFB,

"Guidelines").

466 Ibid., pp. 1-2.

467 Ibid., p. 2.

The American Printing House for the Blind's

recommendations for Web site development include: (1) State and local government entities

should create Web pages that can be manipulated by visually impaired individuals; and (2)

providers of Web sites should focus on the content/text, avoid tables and graphics, have strong

contrast between the background and print, and

be "mouse independent" (i.e., use keyboard

equivalents). Web pages with these characteristics can be virtually 100 percent accessible by

individuals who rely on screen access readers

and voice synthesizers to communicate with

their computers.468

In January 1996, the Corporation for Public

Broadcasting/WGBH Educational Foundation's

National Center for Accessible Media (NCAM),

initiated a Web Access Project. The project aims

to research, develop, and evaluate methods of

integrating "access technologies" (such as audio

description) and new "Web tools" into Web sites

so that they are "fully accessible" to visually and

hearing impaired Internet users. NCAM has

partnered with software and hardware manufacturers, the Federal Government, and other entities to disseminate technology, methods, and

information to enhance Web site accessibility.

According to the director of the Web Access

Project, as of April 1998, the Arizona Department of Archives and Public Records and the

City of San Jose, California, are the two public

entities that have had their Web sites reviewed

by the National Center for Accessible Media.469

As of February 1998, San Jose had completed

"groundbreaking work" in the area of "accessible

Web design" and is the first government jurisdiction in the Nation to implement a "Web accessibility policy."'" The guidelines for accessible design are intended to ensure that Web sites accommodate all individuals regardless of their

ages, language and literacy capabilities, disabilities, or computer preferences.4" The City of San

468 Christine Anderson, Resource Services Manager, American Printing House for the Blind, Louisville, KY, telephone

interview, Apr. 2, 1998.

469 Geoff Freed, Director of the Web Access Project, National

Center for Accessible Media, telephone interview, Apr. 7,

1998, p. 1 (hereafter cited as Freed interview).

479 WAI Press Release, p. 3.

471 DOEd, "Requirements for Accessible Software Design,"

p. 1.

114

= 1241
Jose is adapting all its Web sites, both home

page and departmental pages, and all future

Web sites will follow technical standards developed by the city.472

The Web Access Project director indicated

that there are no "official standards" with respect to designing accessible Web sites. Although

the City of San Jose may refer to its guidelines

for accessible design as "standards," they are

actually recommended practices, such as: (a) link

472 Freed interview, pp. 1-2.

photographs to their respective descriptions, (b)

include "text transcriptions" for audio and video

clips; and (c) avoid use of tables with more than

two columns of text. In addition, all image maps

will be connected to text that can be interpreted

by a screen reader. San Jose also intends to link

each of its Web sites to a supplemental page on

"access instructions" that assists individuals

with disabilities in browsing the Web sites.473

473 See Freed interview, pp. 1-2.

115

125
Title II Outreach, Education, and

`.° Technical Assistance

The Americans with Disabilities Act required

the responsible Federal departments and agencies to provide technical assistance as an integral part of the pre- and post-implementation

phases. The Department of Justice, in consultation with the Equal Employment Opportunity

Commission, the Department of Transportation

(DOT), the Architectural and Transportation

Barriers Compliance Board (ATBCB), and the

Federal Communications Commission (FCC),

was required to develop a technical assistance

plan to assist entities covered by the ADA, and

other Federal agencies, in understanding their

responsibilities under the new law.1 This was

the first time that a Federal civil rights law required the provision of technical assistance.

Although the ADA recognized the importance

of technical assistance, it did provide that no

covered entity could use failure to receive technical assistance as a reason for noncompliance

with the statute. Specifically the law stated:

An employer, public accommodation, or other entity

covered under this Act shall not be excused from compliance with the requirements of this Act because of

any failure to receive technical assistance under this

section, including any failure in the development or

dissemination of any technical assistance manual

authorized by this section.2

Pub. L. No. 101-336, § 506 (a)(1), 104 Stat. 337, 371 (1990)

(codified at 42 U.S.C. § 12206 (a)(1) (1994)).

2 Id. § 506(e), 104 Stat. 337, 372 (1990) (codified at 42 U.S.C.

§ 12206 (e) (1994)).

Technical Assistance Plan

The proposed plan defined technical assistance

as "the provision of expert advice, and both general and specific information and assistance to the

public and entities covered by the ADA."3 The

purposes of the technical assistance were "to inform the public (including individuals with rights

protected by the Act) and covered entities about

their rights and duties; and to provide information about cost-effective methods and procedures

to achieve compliance."4 The technical assistance

plan proposed to make use of virtually all available types of communication. These included publications, exhibits, videotapes, public service announcements, and electronic bulletin boards. The

plan stated that it was essential the information

and materials be disseminated in alternate formats (e.g., Braille, large print, closed caption, etc.)

so that it is understandable to individuals with

different disabilities.5 In addition, the plan required the responsible Federal agencies, under

DOJ's leadership, to make presentations at conferences and workshops and conduct training

programs nationwide. The agencies were mandated to provide detailed advice to individuals on

specific topics or in the resolution of a specific

problem through such mechanisms as telephone

hotlines, information clearinghouses, or onsite

3 Technical Assistance Plan for the Americans with Disabilities Act, 55 Fed. Reg. 50,237, 50,239 (1990) (DOJ-proposed

technical assistance plan).

4 Id.

5 Id.

116

126
experts.6 Finally, the agencies were to establish a

number of clearinghouses to collect and share information on the experiences of covered entities

and individuals. Information for the clearinghouses was to be systematically collected and

shared "to enhance the development, assessment,

and replication of new and improved compliance

methods and techniques."7

A long term goal of building the relationship

between the Federal agencies and these

"grassroots" organizations was to "build the capacity of these organizations to provide technical

assistance to their respective constituencies" in

the future.8 The organizations were to assist the

agencies in defining the "differing problems and

technical assistance needs" of the various groups

represented by the disability community. They

were expected to participate in development and

delivery of the technical assistance initiatives.

Both DOJ and EEOC made extensive use of the

disability rights organizations in their training

and development, production and dissemination

of the technical assistance materials.9

Interagency Coordination

To assure that the development and implementation of the Federal Government's ADA

technical assistance efforts were effective, comprehensive, and maximized the available resources, the plan required the Department of

Justice to establish and chair a Technical Assistance Working Group. It was initially composed

of the four implementing agencies (DOJ, EEOC,

DOT and FCC) and representatives from the

ATBCB, the National Council on Disability

(NCD), the President's Committee for the Employment of People with Disabilities (PCEPD),

6 Id. The four agencies with primary responsibility for implementing the ADA were identified as the Department of

Justice, the Equal Employment Opportunity Commission,

the Department of Transportation, and the Federal Communications Commission. Id.

7 Id.

8 Id.

9 Ruth Lusher, Technical Assistance Coordinator, Disability

Rights Section (DRS), Civil Rights Division (CRD), U.S. Department of Justice (DOJ), interview in Washington, DC, Dec.

4, 1997 (hereafter cited as Lusher December 1997 interview)

and William White, Acting Director, Office of Communications

and Legislative Affairs, U.S. Equal Employment Opportunity

Commission (EEOC), interview in Washington, DC, Dec. 5,

1997 (hereafter cited as White interview).

the Small Business Administration (SBA), the

Department of Commerce (DOC), and other Federal "agencies with technical assistance responsibilities and activities that the Attorney General may identify and invite to participate."10

The representatives of the agencies coordinating technical assistance activities were to

"meet at least twice annually."11 The Working

Group, which is now called the ADA Technical

Assistance Coordinating Committee and is

chaired by the Department of Justice, generally

meets every 3 to 4 months to exchange information, coordinate efforts, and deal with technical

assistance issues that arise.12 Because there was a

heavy initial workload associated with developing

and implementing the technical assistance program, the group met every 2 to 3 months in the

first few years of ADA implementation efforts.13

Now 22 agencies involved in ADA enforcement

and technical assistance participate in the Interagency Coordinating Group." The group was expanded by DOJ because the impact of the law was

greater than initially contemplated, e.g., the National Endowment for the Arts, which deals with

accessibility issues for museums.16

Reporting

The plan further provided that the Department of Justice would prepare an annual report

describing technical assistance provided by or on

behalf of the Federal Government in support of

the ADA. The report was to be issued by December 31 of each year.16 However, according to the

chair of the ADA Technical Assistance Coordinating Committee for DOJ, no annual reports on

technical assistance were issued.17 But there is a

section on technical assistance efforts in the

quarterly Enforcing the ADA: A Status Report

10 55 Fed. Reg. at 50,240.

11 Id.

12 Roster of ADA Technical Assistance Coordinating Committee, Feb. 3, 1998.

13 Ruth Lusher, Technical Assistance Manager, DRS, CRD,

DOJ, interview in Washington, DC, Mar. 18, 1998 (hereafter

cited as Lusher March 1998 interview).

14 DOJ, CRD, DRS, DOJ ADA Technical Assistance Program, January 1993-June 1997, attachment B, p. 6.

16 Lusher March 1998 interview.

16 55 Fed. Reg. at 50,240.

17 Lusher March 1988 interview.

117

127

BEST COPY AVAILABLE
from the Department of Justice.18 The first report

was issued in July 1993.19

The information in the sections on technical

assistance in the status reports is not nearly as

comprehensive as envisioned in the annual

technical assistance report called for in the proposed Technical Assistance Plan issued in December 1990. For example, the Technical Assistance Section in a recent ADA Enforcement

Status Report states briefly the requirement

that DOJ provide technical assistance on the

ADA. The introductory statement describes generally the kinds of information sources that are

available to those with duties and rights under

the law. The section gives information on DOJ's

ADA home page, the ADA information line, the

ADA fax on demand system, and publications.

There is an advisory on a new ADA publication,

which also provides information on other Federal sources of ADA information, including

EEOC, FCC, DOT, ATBCB, and PCEPD.20

The Attorney General was further mandated

to prepare guidelines for annual updates to the

Technical Assistance Plan by the agencies represented in the Working Group. The Attorney General also had the authority to require other agencies having technical assistance responsibilities to

submit updates that "describe progress made

during the past fiscal year to implement the provisions of ADA and this plan, the results of any

assessments or evaluations of technical assistance

delivery or innovative methods or procedures to

promote compliance, and program initiatives proposed for the current fiscal year."21 No formal updates on progress in implementing the ADA and

the plan were ever completed.22 However, DRS

sent out a survey to a large group of Federal

agenciesincluding many not envisioned by Congress when the ADA was enactedinviting them

to participate in the ADA Technical Assistance

Working Group and share their ADA plans and

activities, including the plans and outreach efforts

18 Ruth Lusher, Technical Assistance Program Manager,

DRS, CRD, DOJ, telephone interview, Feb. 23, 1998

(hereafter cited as Lusher February 1998 interview).

19 Lusher March 1998 interview.

20 DOJ, CRD, DRS, Enforcing the ADA, A Status Report from

the Department of Justice (October - December 1997), pp. 12-14.

21 55 Fed. Reg. at 50,240.

22 Lusher March 1998 interview.

of their contractors and grantees. The DRS staff

has attempted to collect and place this information in a database but has run into several computer-related problems over the years. Most of

these problems have now been corrected, and a

report is expected to be issued in 1988.23

DOJ Technical Assistance Program

Early Implementation Efforts

DOJ's ADA technical assistance and outreach

program is in Washington, D.C., in what is now

the Disability Rights Section of the Civil Rights

Division. The Department has no regional, district, or field offices. From the beginning, DOJ

saw technical assistance as a distinct and essential part of implementing ADA.24

Initially, the Office of the Americans with

Disabilities Act (OADA), which was part of the

Coordination and Review Section (CORS) of the

Civil Rights Division, had few staff and relied on

other CORS staff to assist in the technical assistance effort. Over time, the Department developed specialized staff, publications, and services

to carry out its technical assistance mandate. In

October 1992, OADA became a separate sectionthe Public Access Section. It was later renamed the Disability Rights Section.25

Staff assigned to the ADA was small initially.

Between fiscal years 1991. and 1993, staff involved in the technical assistance effort included

four full-time and one part-time professionals

and two to four contractors. Attorneys, architects, and other professional staff supported the

technical assistance program by serving shifts on

the ADA information line, drafting technical assistance materials, reviewing materials developed by grantees, and participating in the ADA

speakers' bureau. Support staff included one

full-time clerical and three to four half-time

stay-in-school students.26 In 1993, Attorney

General Reno authorized additional term staffing resources, which permitted the attorneys

23 Ibid.

24 Lusher February 1998 interview.

25 DOJ, CRD, DRS, answers to U.S. Commission on Civil

Rights Questions to Ruth Lusher, Technical Assistance Coordinator, Apr. 20, 1998 (hereafter cited as DOJ Answers,

Apr. 20, 1998).

26 Ibid.

118

128
and architects to work on more complaints and

other ADA implementation responsibilities.27

This report focuses on 'technical assistance

provided in support of title II. (DOJ is also responsible for technical assistance for title III.)

DOJ was required to issue regulations implementing the nontransportation requirements of

title II by July 26, 1991, and State and local government operations were required to be in compliance by January 26, 1992.28

DOJ was expected to expand existing technical assistance activities designed to ensure that

entities and individuals covered by title II learn

about the ADA's requirements and develop the

capability to identify" and solve compliance

problems. The goal was to provide technical assistance to as many entities as possible over the

term of the plan (fiscal years 1991-1994).29

In July 1990, DOJ established an information

hotline to respond to requests for information

from covered entities and individuals.30 Attorneys

and architects in DOJ staffed the hotline, to the

point of its interfering with their work on investigating and litigating complaints. In 1993, Attorney General Reno authorized the hiring of, 10

term employeeswho serve up to 4 yearsto

staff the information line and carry out other

technical assistance activities. Most of the first

hired were members of the disability community

or were active in disability rights efforts. Many of

these staff members had also completed the Disability Rights Education and Defense Fund

(DREDF) training on the ADA, given in 1992 and

1993. DRS has managed to keep..the slots filled

during the last 4 years and retain the staff.31

DRS has requested that the 10 positions be

made permanent in the fiscal. year 1999 budget

request.32 On an average day, the information

line receives 400 calls, one-third of which are

handled by ADA specialists; the remaining callers are ordering publications or obtaining information through the automated system. The 400

call volume more than doubles when there is a

27 Lusher March 1998 interview.

28 Pub. L. No. 101-336, §§ 106,246, 104 Stat. 327,336,353

(1990) (codified at 42 U.S.C. §§ 12116, 12161 note (1994)).

29 55 Fed. Reg. 50,242.

30 Lusher December 1997 interview.

31 Lusher March 1988 interview.

32 Ibid.

media story or some other event occurs that

publicizes the ADA.33 For example, after distributing ADA information in an IRS quarterly

mailing to more than 6 million small businesses,

DOJ received 100,000 telephone calls.34

Early efforts were also made to develop and

distribute general ADA information materials

such as fact sheets, pamphlets, and copies of the

law, which were printed in alternative formats.

By May 1993, the Department had disseminated

over 2 million copies of the regulations, publications, and fact sheets.35 DOJ also established a

speakers' bureau to make DOJ staff available for

speeches and participation in workshops, seminars, classes, conferences, conventions, and

other similar outreach efforts.36 The Department

also. created an exhibit for use at such gatherings to focus attendees' attention on the ADA

and to facilitate the distribution of materials.37

The Department staff made an increasing number of appearances at conferences, averaging

approximately 120 per year after implementation until fiscal year 1995 and the governmentwide furloughs. For example, in fiscal year

1992, there were 173 speaking engagements and

the exhibit was shown at 5 conferences.38 However, since the fiscal year 1996 shutdowns and

furloughs, DOJ has only averaged about 60 appearances a year. In fiscal year 1996, there were

67 speaking engagements on ADA and in fiscal

year 1997, there were 61 speaking engagements.39 The drop in speaking engagements is

also partly because of limited financial resources

for technical assistance since fiscal year 1996.40

Pre-1993 Implementation Efforts

Little documentation is available on Justice

Department technical assistance efforts before

fiscal year 1993. DRS staff did provide a statement prepared for the Inspector General in

r See DOJ Comments, July 24, 1998.

34 Lusher December 1997 interview.

35 Lusher March 1998 interview.

36 55 Fed Reg. at 50,242.

" Id.

38 U.S. Department of Justice ADA Speaking Engagements

and Exhibits Information Sheet.

39 Ibid.

40 Lusher December 1997 interview.

119

129 BEST COPY AVAILABLE
1993, which described some of these early outreach efforts:

Two IRS mailings were sent out that reached

6 million businesses both in 1992 and in 1993.

One mailing provided the telephone number for

the Department's information line and the other

offered to send information to those who sent in

the business reply card.

A mailing was sent out to 7,600 supermarkets

for placement of ADA materials on their public

bulletin boards. The mailing also included a card

for ordering additional information. The Department estimated these supermarkets served

120 million shoppers per week.

Through the National Council of State Legislatures, more than 90,000 State and local officials were mailed reply cards for ordering ADA

materials.

A mailing with a letter from the Assistant

Attorney General for Civil Rights was sent to

15,000 architects and other design and construction officials in 15 States with active building

projects to offer ADA technical assistance.

Early versions of ADA Questions and Answers and fact sheets were distributed; they

were in Spanish and in alternative formats, e. g.,

Braille, large print, audiotape, and computer

disk. The "Q & As" have been revised several

times since the ADA was enacted.

The ADA Technical Assistance Manual was

distributed in January 1992 and a revised version was sent out in 1993.

An ADA Handbook was sent out in the fall of

1991 and a revised one was sent out in December 1992. It contained the regulations, with accessibility standards, questions and answers, a

list of resources, etc.

The DOJ maintained a speakers' bureau that

provided speakers for professional meetings and

training conferences to explain the ADA to interested organizations, business groups, and

Federal agencies.

DOJ operated an information line and an

electronic bulletin board through which ADA

documents could be downloaded by individuals

with computer modems. These are still available

but have been improved over the years.

Funding for the Disability Rights Section's

ADA technical assistance program varied between fiscal year 1991 and fiscal year 1997. Although the information on funding provided by

DOJ does not include the salaries of the employees who had other ADA program responsibilities,

it does illustrate the variance in funding since

ADA was enacted. In fiscal year 1991, there was

a $2 million nonrecurring increase for technical

assistance, for a total allocation of $4,040,000. In

fiscal year 1992, the total technical assistance

fund was $2,324,000. In fiscal year 1993, the

funds peaked at $4,584,000. Funding for technical assistance has declined every fiscal year

since then, and in fiscal year 1997, the money

received was only $2,900,000.41

Technical Assistance Manual

In fiscal year 1991, DOJ began to focus its

technical assistance efforts on additional research, requests from contacts, and information

received during the process of issuing regulations.42 One of the earliest efforts was the development and distribution, in conjunction with

EEOC, of the ADA Handbook.

This comprehensive handbook provided informationsome of it highly technicalon compliance requirements of titles I, II, and III of the

ADA. It was widely distributed, at no cost, in

January 1992 to private employers, State and local governments, libraries, the disability rights

community, etc. The handbook contained information on the hotlines for DOJ and EEOC. The

information line telephone number provided, at

that time, for DOJ was not toll free while EEOC's

was toll free. Also included in the handbook was a

copy of the ADA statute and an ADA resource list.

The approximately 380-page handbook also included sections such as ADA Accessibility Guidelines, Uniform Federal Accessibility Standards,

Summary Chart on Coverage and Effective Dates,

Terms Defined in Statute and Regulations, Summary of Legislative History and Related Information, Disability-Related Tax Provisions Applicable

to Business, Supreme Court Cases Related to Section 504, Opinions Related to Section 504 of the

Attorney General and the Office of Legal Counsel,

Related Federal Disability Laws, ADA Questions

and Answers, and ADA HighlightsTitle II and

ADA HighlightsTitle III.

Al Budget InformationDisability Rights Section FY 1991 to

FY 1998, provided by DRS.

42 55 Fed. Reg. at 50,242.

120

130
The ADA required that each Federal agency

responsible for implementing the law produce and

distribute a technical assistance manual to covered entities and individuals.43 The technical assistance manual(s) was to be distributed "no later

than 6 months after applicable final regulations

are published under Titles I, II, III, and IV."44

The final Department of Justice regulations

on title II were published in the Federal Register

on July 26, 1991,45 and the Technical Assistance

Manual was issued in January 1992. Updates

were issued in 1993 and 1994.46

DOJ has no plans to update the Technical Assistance Manual because the technical assistance program approach now favors targeted

brochures, such as Q & As on specific topics.

Further, the Chief of the Disability Rights Section said that the Federal courts have begun to

give deference to the manuals because the

agency's interpretation was contemporaneous

with the passage of the ADA and the issuance of

Department regulations. To avoid the risk of

losing this deference, DRS has decided not to

continue issuing updates to the manuals.47

There also were plans for the Technical Assistance Manual to be placed on CDROM, according to the 1990 Technical Assistance Plan.48 The

CDROM project was not done in 1993 because

people with disabilities and covered entities

could not use this technology due to insufficient

equipment.49 People with disabilities and covered entities now typically have the equipment,

and DRS plans to make the Technical Assistance

Manual available in CDROM and in other formats in the next year or so.50

43 42 U.S.C. § 12206 (c)(3) (1994). 44 Id.

45 Nondiscrimination on the Basis of Disability in State and

Local Government Services, 56 Fed. Reg. 35,694-35,723

(1990) (codified at 28 C.F.R. pt. 35).

46 Lusher March 1998 interview.

47 John Wodatch, Chief, DRS, CRD, DOJ, interview in

Washington, DC, Apr. 16, 1998.

48 55 Fed. Reg. at 50,243.

Lusher March 1998 interview.

5° Ibid.

Training and Education Programs

Training was a second area that received concentrated attention from the outset.51 In 1991

and 1992, DOJ, in conjunction with EEOC, conducted joint training, funded through a contract

to DREDF. Under joint oversight by the two

agencies, DREDF conducted "train the trainers"

training in phase I for 400 who were for the most

part involved in the disability rights movement.

Once trained they were expected to train others

in employer groups, other covered entities, covered individuals, and others. In phase II, 100 of

these trainers received advanced training that

focused, in part, on alternative dispute resolution. The participants were trained and certified

as mediators.

In phase I, five sessions, lasting 5 to 6 days,

were held around the country. Participants included people with disabilities, parents of individuals with disabilities, facilitators for information access, and Federal ADA grantees of DOJ

and the Department of Education's National Institute on Disability and Rehabilitation Research

(NIDRR).52 The phase I participants trained almost 60, 000 people, including 18, 336 persons

with disabilities; 12,332 employers; 13,040 State

and local governmental personnel; 9,181 public

accommodations personnel; 4,239 parents of persons with disabilities; and 598 alternative dispute resolution (ADR) personnel. In phase I, 416

ADR negotiations were also attempted.53

More than 80,000 people were trained by the

100 participants who received both phase I and

phase II training, including 22,039 persons with

disabilities, 16,968 employers, 17,976 State and

local governmental personnel, 16,835 public accommodations personnel, 5,642 parents of persons

with disabilities, and 747 ADR personnel. There

were 332 ADR negotiations attempted. In addition to the grant requirements, technical assistance activities by participants included: 900 articles published in newsletters and journals; 48 continuing contributions to newsletters targeted to

persons with disabilities, employers, and other

covered entities; 4 instructional/informational

51 Lusher December 1997 interview.

52 EEOC, Americans with Disability Act (ADA) Training and

Implementation Network List of Participants, September

1993.

53 Lusher March 1998 interview.

121

131
videotapes on ADA implementation done by an

independent producer and distributed to employers and others; 70 local access broadcast station

appearances by project participants to discuss

ADA and its impact; 3 continuing television series

involving participants (2 on PBS stations); and 3

overseas presentations on ADA. Ten of the participants were recipients of local, State, or national awards recognizing their efforts to promote

effective ADA implementation and full inclusion

of people with disabilities.54

Technical Assistance Grants and Contracts

Another area of focus during the initial implementation phase was the awarding of grants

and contracts to nonprofit organizations to develop technical assistance materials. The ADA

authorized grants to individuals and entities

who had duties and rights under the statute.

The grants and contracts technical assistance

program was set up to ensure broad dissemination of information about the rights and duties

established by the ADA and to provide technical

assistance on effective compliance techniques.55

In the first few years, an average of 20 technical assistance grants was awarded per year. In

fiscal year 1991, there was one soliciation and 15

grants; 4 were awarded in fiscal year 1992. In fiscal year 1993, 22 grants were awarded and 5 supplemental awards were made to original grantees

with continuing grants. In fiscal year 1994, 12

grants and 7 continuing grants were awarded. In

fiscal year 1995, 21 grants were awarded and 5

grants continued. In fiscal year 1995, the Department of Justice began State-based community

education grants designed to build networks supporting ADA among the various State and local

governmental agencies. In fiscal year 1996, 14

grants and 4 continuing grants were awarded. In

fiscal year 1997, there was no solicitation because

of funding limitations, but supplemental funding

was provided to 3 continuing grants.56 It has

taken about 2 to 3 years to publish and distribute

the technical assistance material from the time

that the grant was awarded.57 Many of the techni54 The Americans with Disabilities Act Training and Technical Assistance for People with Disabilities. 55 42 U.S.C. § 12,206(d)(1),(2) (1994). 56 Lusher March 1998 interview. 57 Lusher December 1997 interview.

cal assistance program grants were awarded to

groups involved in disability rights, but most were

awarded to such groups as the U.S. Conference of

Mayors, the Police Executive Research Forum,

National Association of Towns and Townships,

and other entities that had responsibilities under

title II or title III of the ADA.58 Most of the development grants are coming to an end. DRS staff is

looking into producing informational materials

inhouse in the future; many will be updates or

revisions to previously issued publications.59

The goal of these initial technical assistance

efforts was to inform and train covered entities

about ADA requirements and how to solve compliance problems. Included in the information

that DOJ proposed to disseminate were examples of model compliance strategies and the offer

of assistance to covered entities in achieving

compliance. During this initial phase, DOJ proposed in the Technical Assistance Plan efforts to

determine the most effective types of informational and training materials and mechanisms

for delivery of training for the different audiences that they were mandated to reach.60

One of the other methods of technical assistance that DOJ planned to use was teleconferencing and videotaping training sessions to disseminate information on the ADA.61 The staff

conducted teleconference training in January

1992 for the American Institute for Architects

and did another teleconference in June 1997.62

DOJ proposed to use varying presentation formats and questions and answers in the training

sessions and videotapes. The technical assistance plan also stated that wherever possible

other agencies involved in enforcing the ADA or

providing technical assistance about the ADA

would be asked to participate in these conferences.63 Many of these were accomplished

through the grant program and included training videos developed by the Disability Rights

Education and Defense Fund and Building Owners and Mayors Association International.64

58 See DOJ Comments, July 24, 1998. 59 Lusher March 1998 interview. 60 55 Fed. Reg. at 50,242 50,243. 61 Id. at 50,243. 62 Lusher March 1998 interview. 63 55 Fed. Reg. at 50,243. 64 See DOJ Comments, July 24, 1998.

122

132
The Department of Justice conducted training on title II requirements for staff in other

Federal agencies who have significant contact

with persons with disabilities or are involved in

ADA enforcement. The initial plan included staff

in the U.S. attorneys' offices, the Rehabilitation

Services Administration, and the civil rights offices of other Federal agencies.65 In addition to

training staff in the U.S. attorneys' offices, the

DRS staff has trained Federal employees at the

Park Service, GSA, Transportation, Labor, and

other agencies.

More Recent ADA Implementation Efforts

Between fiscal year 1994 and 1997, the professional staff engaged in technical assistance

has grown to 16 full-time professionals. Attorneys support the technical assistance effort by

serving as attorney-of-the-day to answer complex questions from the technical assistance

staff, drafting and reviewing some technical assistance materials, and by participating in the

ADA speakers' bureau. One full-time clerical

staff person and 3 to 4 half-time stay-in-school

students provide support to the DOJ technical

assistance and outreach efforts.66

The responsibility for ADA technical assistance remains within the Disability Rights Section in Washington, D.C. Resources were supplemented with assistance and outreach by the

U.S. attorneys' offices throughout the United

States. These offices were used to assist in specific outreach programs, such as the "911" emergency response effort to local police departments

nationwide.67

Use of Varied Communications Methods

After title II and other provisions of the ADA

became effective, DOJ staff continued their implementation efforts for the ADA. During this

time, many of the initiatives that had been proposed in the Technical Assistance Plan and in

the formulation stage before 1993 were completed. The following are some examples of the

varied technical assistance efforts carried out by

DOJ to communicate the ADA requirements:

65 55 Fed. Reg. 50,243.

66 Lusher March 1998 interview.

67 Lusher December 1997 interview.

A toll-free ADA information line was set up to

provide information and free publications to the

public about the ADA requirements. It operates

with both 24-hour automated service and ADA

specialists staffing it 8 hours per day except

Thursday when it is staffed for 5 hours. There are

telephone numbers for voice and TDD. Spanishlanguage service is also available. The ADA information line received 76,000 calls in fiscal year

1995, 88,000 calls in fiscal year 1996, and more

than 160,000 calls in fiscal year 1997.68

Fourteen ADA Enforcement Status Reports

were developed; they provide information on the

Department of Justice's enforcement, technical

assistance, and certification activities for the

ADA since 1993.69 These reports are widely distributed to libraries and organizations involved

in ADA enforcement and are available on DOJ's

Internet home page.

Publications were developed to deal with

ADA-related issues for specific segments of society, including as six publications in a simple

question and answer format providing ADA information on the following topics: State and local

governments, telephone emergency response

(911) centers, child care centers, HIV/AIDS, law

enforcement, and hiring police officers.70

A publication was created in a simple question and answer format titled, ADA Myths and

Facts, which provided basic information for

State and local governments and businesses to

dispel common misconceptions about the ADA's

requirements.n

An ADA home page was created. The home

page provides information about: the ADA information line, ADA technical assistance program,

ADA enforcement efforts, activities to provide certification of State and local building codes that

meet ADA accessibility standards, and proposed

changes in ADA regulations and requirements.

The Department's Web site also provides access to

ADA regulations and technical assistance materials. Information can be viewed online or downss ADA Technical Assistance Program, January 1993 to

June 1997, attachment B, page 1, prepared by DRS, CRD,

DOJ, 1997 (hereafter cited as DOJ ADA Technical Assistance Program).

69 Ibid., attachment B, p. 2.

79 Ibid., p. 3.

71 Ibid.

123

133
loaded. Links are also provided to other Federal

agencies' electronic bulletin boards or Internet

sites that have ADA information. As of late fiscal

year 1997, the ADA home page was receiving between 30,000 and 100,000 hits per week.72 Information on the home page is accessible to the public in a large number of public libraries.

There were several written communications

to the centers for independent living on available

ADA information materials.

A publication, "Strategies for Teaching Universal Design," was distributed to libraries of

200 schools of architecture. A letter was sent to

the deans of these schools informing them that

the publication had been sent to their libraries.73

Through grants to organizations in the disability rights movement, DOJ has developed a

number of educational videotapes such as: Access

for Deaf Americans, a 65-minute videotape produced by the National Center for Law and Deafness explaining the ADA in sign language, with

voice-over and subtitles; Explaining the ADA, a

series of five videotapes produced by the Access

Video Fund, explaining the background of the

ADA, definitions, and the requirements for telecommunications, employment, State and local

governments, public accommodations and transportation; and My Country, a one-hour documentary produced by the Access Video Fund, in which

conductor James De Priest (nephew of Marion Anderson) profiles three people with disabilities

whose lives have been shaped by the struggle for

equal rights.74 The latter video, which is of high

production quality, effectively communicates to

the audience that ADA-mandated disability rights

are civil rights. The documentary has been shown

on Public Broadcasting System stations and will

be distributed to the centers for independent living, the disability business technical assistance

centers, and the representatives of participating

agencies on the Technical Assistance Coordinating Committee.75

Public service announcements (PSAs) for radio and television were developed in conjunction

72 Ibid., p. 1.

73 Overview of ADA Technical Assistance Efforts, (FY 91FY

93; prep. For IG), undated.

74 DOJ ADA Technical Assistance Program, attachment D,

p. 1.

75 Lusher December 1997 interview.

with the Department's Office of Public Affairs.

The PSAs feature Attorney General Reno outlining the basic requirements of the ADA and

publicizing the availability of ADA information

in public libraries and the toll-free ADA information line.76 After several years, the radio PSA

continues to be aired on radio stations. Subsequently, a second PSA was developed featuring

President Clinton. The PSA publicizes the ADA

and the toll-free ADA information line and was

distributed to 4,000 radio stations.77

This use of a variety of communications media has enabled the Department of Justice to

reach large segments of the population. DRS

staff attempted, in the early implementation efforts, to deal with the broad range of issues related to ADA and to reach a large audience at

the business, governmental, and grassroots levels. More recently, the DRS staff is targeting

State-based organizations to deal with issues at

the grassroots level because it believes this will

be a more effective method for promoting ADA

compliance at the local level through the technical assistance program.78

Extensive Efforts to Reach a Broad Audience

DOJ has also made extensive efforts to disseminate the ADA technical assistance materials

and information to a large, diverse group of organizations and entities to ensure that the material is widely accessible to covered organizations

and individuals. For example, since January

1993, DOJ had distributed more than 30 million

publications and information pieces throughout

the United States.79 In addition to the information line, publication distribution system, and

the ADA home page on the Internet, DOJ has

carried out the following outreach efforts to

reach large segments of the public to educate

them about the ADA:

An ADA information file was placed in 15,000

public libraries throughout the country. The file

contains 95 publications developed by DOJ, other

76 DOJ ADA Technical, Assistance Program, attachment B,

P. 5.

77 DOJ ADA Technical Assistance Program, p. 6.

78 Lusher December 1997 interview.

DOJ ADA Technical Assistance Program, attachment B,

IL 3.

124

1 3 4
Federal agencies, and ADA grantees. Several of

the publications in the file are in Spanish.80

A packet of 33 ADA publications related to

titles II and II was distributed to 6,000 local

chambers of commerce nationwide.81

Four hundred and thirty centers for independent living were provided with a collection of

ADA materials and videotapes and current information about ADA publications and information services available from the Federal Government. DOJ continues, on a regular basis, to

provide the centers with status reports on technical assistance materials.82

An ADA compliance guide and other educational materials were sent to mayors of 1,100 medium and large cities. The material was included

with a transmittal letter from the Assistant Attorney General for Civil Rights encouraging the

mayors to use the materials as guidance in meeting their ADA compliance responsibilities.83

A letter and educational material from the

Assistant Attorney General for Civil Rights were

sent to mayors of the Nation's 250 largest cities,

notifying them of their responsibility to ensure

that their 911 emergency response system effectively serves people with disabilities who use

TDDs or computer modems.84

Commonly Asked Questions About the ADA

and Law Enforcement, Questions and Answers:

The ADA and Hiring Police Officers, and a Civil

Rights Act publication were sent to 9,500 law

enforcement agencies, with a transmittal letter

from the Acting Assistant Attorney General for

Civil Rights notifying them of their responsibility as Federal grant recipients to comply with

the ADA, section 504 of the Rehabilitation Act,

and title VI of the Civil Rights Act.85

Some 13,000 technical assistance publications

were distributed at ADA town meetings sponsored by the National Council on Disability,

which were conducted in each State to bring

businesses and the disability community together to discuss the ADA.86

80 Ibid., p. 4.

81 Ibid.

82 Ibid.

83 Ibid.

84 Ibid.

85 Ibid.

86 Ibid., p. 5.

More than 185,000 ADA Questions and Answers booklets were distributed nationally

through the Federal Consumer Information Center in Pueblo, Colorado.87

O Technical assistance was provided to 10 regional disability and business technical assistance

centers (DBTACs), which are funded by the Department of Education, to assist them in responding to questions about specific requirements

of the ADA. They were also given technical assistance materials to disseminate to the public.88

The dissemination of information to 15,000

public libraries was one of the accomplishments

that the Department of Justice staff believes was

very successful.89 The effort was initiated in 1993,

through a grant to the Kansas State Library and

the Chief Officers of State Libraries Agencies

(COSLA). There have been three different mailings of ADA information files to the public libraries since the project was implemented. The materials included relevant ADA-related laws and

regulations; the Technical Assistance Manual and

Highlights and Supplements, some of which were

in Spanish; Question and Answer publications,

several of which were also in Spanish; the ADA

enforcement status reports; materials dealing

with business and consumers; ADA technical

guidance for health care and medical facilities;

technical assistance information for hotels and

motels; ADA and child care; technical assistance

information for other businesses and businessrelated resources; information on communication

access; technical guidance for State and local governments; information on aging issues and disability; design guides; and resource lists and general information on ADA.90

COSLA has also sent out a checklist for librarians of all of the technical assistance materials that should be retained in the ADA files.91 An

onsite review was conducted by Commission staff

of five local libraries in the Washington Metropolitan area to determine how these materials

were retained and displayed. The results were

uneven. In a local community library in Fairfax

87 Ibid.

88 Ibid., attachment B, p. 2.

89 Lusher December 1997 interview.

90 Learn About the ADA in Your Local Library, prepared by

DRS, CRD, DOJ, attachment F, 1997.

91 Lusher December 1997 interview.

125

135 BEST COPY AVAILABLE
County, Virginia, no ADA technical assistance

materials were available. In the regional library

for Fairfax County, the only technical assistance

information on the ADA available was the Technical Assistance Manual. None of the updates was

included. The librarian said that the ADA and

disability materials were available at a library in

another part of the county that provided access

services for people with disabilities. At two Montgomery County, Maryland, libraries, the situation

was different. At a local library, the manual was

available and some, but not all, of the other ADA

materials that had been distributed. A nearby

special needs library had all three ADA information files and the manual; the material was readily accessible and the staff was familiar with the

materials. In Washington, D.C., at the main Martin Luther King, Jr., Memorial Library, a special

library section deals with persons with disabilities. This collection was the most comprehensive

of all five libraries visited. In each of the libraries,

members of the public also could access the Internet. This would permit them to access and download information on the ADA from the Justice Department's ADA home page and other agencies

that also had Web sites providing ADA-related

information. The COSLA grant for distribution of

materials to the 15,000 public libraries has expired, and DRS staff does not plan to renew it. In

the opinion of DRS staff, the program has served

its purpose of successful dissemination of ADA

materials to a wide audience.92

Specific Title II Technical Assistance and

Outreach Efforts

The Disability Rights Section staff, through

the technical assistance program, has worked to

establish an effective outreach program to identify, inform, and work with those affected by title

II of the ADA. According to DOJ's statistics, title

II affects 80,000 State and local government entities and 49 million persons with disabilities.93

The following are examples of efforts to reach

out to targeted groups on the ADA:

Outreach was conducted to targeted audiences

to inform them of rulemaking and the opportunity

to participate by providing comments to DOJ, in

92 Lusher March 1998 interview.

93 DOJ ADA Technical Assistance Program, attachment B, 13- 5-

conjunction with proposed rules published in June

1994 and November 1995.94

A series of outreach projects was initiated, in

conjunction with the U.S. attorneys' offices, for

supplying people with materials and sample letters to provide ADA information to selected types

of government agencies or businesses within their

districts.95 One example of this effort was the distribution of a publication dealing with compliance

for emergency response systems at the State and

local levels. The U.S. attorneys' offices used the

publication as part of a two-pronged effort that

included compliance reviews to encourage compliance without the need for litigation. Staff said this

approach had been very effective.96

Material was distributed publicizing the

availability of ADA technical assistance through

the National Conference of State Legislatures to

more than 90,000 individuals, including State

Governors, lieutenant governors, attorneys general, legislators, policy analysts, and other State

and local officials.97

Letters were sent to 1,053 small and medium

cities after a settlement agreement with Los Angeles on making the 911 emergency response

number accessible to hearing-impaired callers.

Included in the mailing were a copy of the settlement agreement and a title II action guide funded

through a Department of Education grant.

DOJ participated as an exhibitor at 30 national conferences, with staff providing onsite

technical assistance to conference attendees, answering questions and providing informational

materials on the ADA.98

DOJ staff participated as presenters, answered

questions and disseminated materials at statewide conferences and meetings to establish networks of State and local governments to improve

ADA compliance efforts. This is an example of a

more recent effort by DOJ to target technical assistance to specific audiences.99

Through a grant to the U.S. Conference of

Mayors, a Directory of Local ADA Officials was

94 Ibid.

95 Ibid.

96 Lusher December 1997 interview.

97 DOJ ADA Technical Assistance Program, attachment B,

p. 6.

98 Ibid.

99 Lusher December 1997 interview.

126

136
developed. The 47-page pamphlet provided a

resource list of ADA coordinators around the

country.'°° According to the representative of the

U.S. Conference of Mayors, this was a very

popular publication that is still requested, but

unfortunately it is now out of print. The representative recommended updating it and making

a new distribution to cities.101

A 75-page booklet, Implementing the Americans with Disabilities Act: Case Studies of Exemplary Local Programs, was distributed. It summarized efforts being made by cities around the

country to comply with the ADA.102 This was also

very well received by municipal officials, but like

the resource list, this booklet is out of print despite the continuing need for the information.103

Technical Assistance and Outreach to

Minority and Rural Communities

At a November 4, 1997, quarterly meeting of

the National Council on Disability, some members expressed concerns about the level of effort

and effectiveness of the Department of Justice's

ADA outreach program to minorities and people

living in rural areas.104 A council member who

raised her concern about the outreach efforts to

more isolated communities said in an interview

that she believed few complaints had been filed

by minorities with disabilities. She attributed

this to the possibility that they were not aware

of their rights under the ADA.105

These concerns about technical assistance efforts to people with disabilities in minority and

rural communities, as expressed by several

members in attendance at the National Council

on Disability's quarterly meeting, were raised

100 Technical Assistance Materials Produced by Department

of Justice Grantees That Apply to Title II of the ADA, attachment D, 1997.

101 Laura Waxman, Assistant Executive Director, Criminal

and Social Justice, Department of Health and Human Services, U.S. Conference of Mayors, telephone interview, Jan.

23, 1998 (hereafter cited as Waxman interview).

102 Technical Assistance Materials Produced by Department

of Justice Grantees That Apply to Title II of the ADA, Attachment D, 1997.

103 Waxman interview.

I" National Council on Disability meeting in Washington,

DC, Nov. 4, 1997, summary.

105 Audrey McCrimmon, Illinois Department of Human

Services, telephone interview, Dec. 1, 1997.

BEST COPY AVAILABLE

with DRS. DRS staff responded with a paper

that described DOJ's outreach to minority and

rural communities.106 The paper described a

wide variety of efforts to reach out to potentially

underserved groups. These activities included

the following:

The ADA information line is available in

Spanish.

Several ADA publications developed by DOJ

and its grantees have been translated into other

languages for minority populations. The languages include: Arabic, Armenian, Chinese, Dine

(Navajo), Hindi, Khmer (Cambodian), Korean,

Russian, Spanish, Tagalog, and Vietnamese.'°7

The publication, The Americans with Disabilities

Act Questions and Answers, a 32-page booklet

jointly produced by DOJ and EEOC, provides an

overview of the ADA's requirements, is available

in Spanish, Korean, Tagalog, and soon in

French, Chinese and Vietnamese.'°8

Two publications produced under a grant to

the California Foundation on Employment and

Disability, Inc., were prepared in 11 other languages: Doing Business in Compliance with the

Americans with Disabilities Act of 1990, a 28-

page booklet with information for small businesses about the requirements of the ADA; and

Entitlement to Access, a 24-page booklet with

information for consumers about the requirements of the ADA.109

The Civil Rights Division also has participated

in conferences and events designed to reach out to

organizations that represent minority interests.

These include: the White House Initiative on Historically Black Colleges and Universities; Black

Deaf Association; Blacks in Government; Center

for Urban Systems and Technology; Disabled in

Action/Atlanta; District of Columbia Partnership

for Assistive Technology; National Council of La

Raza; League of United Latin American Citizens;

National Association for the Advancement of Colored People (NAACP); National Association of

Black Journalists; National Association of Black

Meeting Planners; National Rehabilitative Initia106 DOJ, ADA Outreach and Service to Minority and Rural

Communities, December 1997.

107 Ibid.

108 DOJ, ADA Materials in Spanish and Other Languages,

December 1997.

109 Ibid.

127

137
tive; National Urban League; Organization of

Chinese Americans; and the Southern Christian

Leadership Conference."° The Division had an

exhibit at these conferences and staff was available to respond to questions from participants.

The DOJ staff has also made presentations on

ADA to several organizations that represent minority interests.'"

The DRS recently has made an effort to reach

out to Native American groups. In 1997, a letter

was sent to over 500 Native American tribal

government offices enclosing ADA technical assistance materials, inviting them to become ADA

information access points and providing information on how to get additional materials. The

letter invited the tribal governments to contact

DRS with their concerns about the ADA. Staff

has attended conferences and made presentations at the Federal Bar Association's Indian

Law Conference and the National Congress of

American Indians.112

The Civil Rights Division also participates in

the cultural diversity initiative sponsored by the

President's Committee on the Employment of

People with Disabilities (PCEPD). Under this

initiative, PECPD works with the NAACP, National Urban League, Aspira, and other organizations to design and implement unique ways to

disseminate information about disability rights

to underserved communities, provide leadership

training for disability leaders from minority

communities, and sponsors a cultural diversity

symposium at PECPD's annual conference.113

The staff has used mass media to reach underserved communities. This includes PSAs,

which were distributed to a large number of

television and radio stations throughout the Nation.114 The distribution of the ADA technical

assistance materials to 15,000 public libraries

nationwide also was an attempt to reach a geographically dispersed audience.115

110 DOJ, ADA Outreach and Service to Minority and Rural

Communities, December 1997.

111 Ibid. 112 Ibid.

A 1997 article was published in Parade

Magazine on the ADA information line and how

to obtain A Guide for Small Businesses and A

Guide to Disability Rights Laws and reached 80

million re aders.116

Every 3 months, the DRS holds a teleconference with centers for independent living to discuss a wide variety of topics, such as complaint

filing procedures, types of cases the Section is

pursuing, the ADA mediation program, and other

items of interest. The centers are provided with

copies of the quarterly status reports and other

publications. Some of the centers are designed

specifically to serve rural communities and others

serve primarily minority communities. The centers also serve as a good source of feedback for

officials involved in ADA implementation.117

Two ADA information dissemination efforts

mentioned earlier also reached very diverse and

large segments of the population. These included

several mass mailings through the IRS business

mailing, which reaches 6 million businesses; and

the ADA pamphlet and card for ordering free

information, which was placed in 7,600 grocery

stores nationwide that serve an estimated 120

million shoppers weekly.118

Through the ADA technical assistance grant

program, the staff has worked with trade associations and others to develop ADA materials

and projects tailored to meet the needs of specific constituencies. These have included owners

and managers of hotels and motels, restaurants,

grocery stores, and small businesses; builders

and contractors; students and professors of design education programs; historic preservation

boards and commissions; medical professionals,

child care and older persons service providers;

mayors of medium and large cities; small towns

and townships; police officers; court personnel;

persons with disabilities; and community and

professional mediators. Under the recent Statebased grant program, DRS staff is working with

State-based organizations to help State and local

government officials and small business owners

at the grassroots level become aware of the

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

p. 4.

128

1.38
ADA's requirements and the resources available

to assist them in complying.119

In recent years, grant applicants have been

required to describe their plan for reaching diverse segments of the population. DRS now requires that applicants provide evidence that their

outreach and publicity efforts will reach potential

participants from all geographic locations of the

target area (nationwide or statewide), from both

urban and rural areas, and from minority communities.120 Initially this was not a specific requirement for grant aPplicants.121

DRS staff are also participating in a task

force of the President's Committee on Employment of People with Disabilities which is trying

to reach out to the disabled minority community

through dissemination of technical assistance

materials.122 In the last few years, DOJ has

placed greater emphasis in its technical assistance efforts on reaching out to persons with

disabilities in underserved communities.

Several persons representing minority groups

were interviewed to get their views on how effective DOJ had been in its outreach to these

groups. The director of the Research and Training Center for Access to Rehabilitation and Economic Opportunity at Howard University, who is

a member of the President's Committee, had told

the Commission in May 1994 that she advocated

dissemination of information on ADA in many

different languages and formats, and through

grassroots organizations such as churches and

community-based organizations. She said that

these special outreach efforts were needed in the

minority community to educate them about the

protections of the ADA.123 In a November 1997

interview, she said that many of her concerns

about reaching out to the minority community

had been addressed and that for the most part

the Department of Justice had done a fairly good

job in disseminating information on the ADA to

all groups. She specifically cited the PSAs recorded by Attorney General Reno and the tollfree information line as being effective in

113 Ibid.

120 Ibid.

121 Lusher December 1997 interview.

122 Ibid.

123 USCCR, Executive Summary, Briefing on the Americans

with Disabilities Act, May 6, 1994, p. 2.

reaching large segments of the population. The

director of the Research and Training Center did

note that there needed to be more diversity in

the people who appear in the informational and

educational videos that have been prepared by

DOJ on the ADA. One group that has not been

targeted for technical assistance materials, she

said, is people with low reading skills, and many

of the educational materials are beyond their

ability to comprehend.124 DREDF was funded to

work with The Arc to develop a simplified explanation of the ADA. It was later used by The Arc

to train adults with mental retardation. The Arc

has developed additional materials for audiences

that have difficulty in comprehension under several DOJ grants.125

An employment advisor who focuses on minority and cultural diversity issues at the President's Committee said that both the Department

of Justice and EEOC had made a concentrated

effort to reach out to members of minority

groups in their ADA technical assistance programs. Although there had been significant progress in outreach to the minorities with disabilities, he said there was a need for improvement.

Specifically, he noted that many of the informational materials such as videos do not feature

members of the disabled minority community or

minorities in other roles.126

The assistant director, Department of Affiliate Development, National Urban League, is

also a member of the President's Committee. In

his opinion, the technical assistance materials

prepared by DOJ and EEOC were of good quality. At the National Urban League, he said they

had found the affiliates that had staff members

with disabilities were more involved in outreach

to the disabled minority community. Further,

these affiliates had found that it was more effective to refer a disabled minority person who was

seeking information to a local community advo124 Sylvia Walker, Vice Chairperson, President's Committee

on the Employment of People with Disabilities, and Director, Research and Training Center for Access to Rehabilitation and Economic Opportunity, Howard University, telephone interview, Nov. 19, 1997.

125 DOJ Comments, July 24, 1998, p.11.

126 Claudie Grant, Employment Advisor, Office of Plans,

Projects, and Services, President's Committee on Employment of Persons with Disabilities, telephone interview, Nov.

19-20, 1997.

129

139
cacy group for technical assistance than to a

Federal agency. In 1997, the National Urban

League organized a national clearinghouse for

technical assistance on disability issues.127

Several other organizations representing the

minority community were contacted. Some, like

the NAACP and the National Council of La

Raza, indicated that they had not conducted any

evaluation of the effectiveness of DOJ's or

EEOC's ADA technical assistance program's outreach efforts to the minority community. La

Raza suggested that the National Center for Latinos with Disabilities in Chicago, Illinois, be

contacted. The executive director said the organization focuses solely on the disabled Hispanic community. She said that she had not seen

any technical assistance materials prepared by

DOJ or EEOC. She noted that it would be helpful to get technical assistance and educational

materials on the ADA in Spanish.128 Since DOJ

prepares many of its technical assistance materials in Spanish, the problem must be in the dissemination efforts.

Generally, the comments received in interviews and meetings about DOJ's ADA technical

assistance efforts have been positive. For example, at a meeting of the National Institute on

Disability and Rehabilitation Research's ADA

technical assistance program project directors on

March 2, 1998, one of the project directors congratulated the head of DOJ's ADA technical assistance program on the effort and noted that she had no complaints. This statement was

greeted with widespread applause.129 Region I

DBTAC staff said that the DOJ enforcement

status reports were extremely helpful as was the

ADA Web site.139 The Region III DBTAC staff

127 Robert Walters, Assistant Director, Department of Affiliate Development, National Urban League, Inc., telephone

interview, Jan. 15, 1998.

128 Maria Elena Rodriguez-Sullivan, Executive Director,

National Center for Latinos with Disabilities, telephone

interview, Nov., 1997.

128 National Institute on Disability Rehabilitation Research,

ADA Technical Assistance Program Project Directors'

Meeting in Arlington, VA, Feb. 24-25, 1998, summary.

130 Responses by National Institute on Disability and Rehabilitation Research Americans with Disabilities Act Technical Assistance Program grantees related to DOJ/EEOC Enforcement, Jan. 6, 1998, provided to the Commission by

David Esquith, National Institute on Disability and Rehabilitation Research (OCRE files), p. 3.

said the Internet is used effectively but the Web

site could have more timely information.131 Region V staff stated that DOJ had developed several quality technical assistance materials, but

supplies have been depleted or copyrights on the

materials make it difficult to reproduce the publications.132 The Region VIII DBTAC staff said

that DOJ had been a bottleneck in gaining approval or creating new guidance materials. They

specifically noted that there needed to be more

attention given to technical assistance materials

for title II entities. The Region X staff noted

some of the same problems with copyrights and

costs associated with some of the technical assistance materials produced under DOJ grants, but

said that the technical assistance "materials

produced by DOJ staff have been uniformly excellent."133 Furthermore, other comments received by the Commission indicate that DOJ's

ADA technical assistance has been "excellent

with inadequate funding and staffing"134 and the

technical assistance materials provided by DOJ

have been "very helpful."135 One disability professional wrote that "we have had technicians at

DOJ go the extra mile and get a legal opinion or

interpretations which is always invaluable and

very much appreciated. Overall we would say

that the experiences with the technical assistance staff on the help line at DOJ has been very

positive."138 Most of the comments the Commission received about DOJ's technical assistance

hotline were positive, but several disability professionals indicated that it was difficult to get

through on the line.137 One disability profes131 Ibid.

132 Ibid.

133 Ibid.

134 Carl Brown, Assistant Commissioner, Division of Rehabilitation Services, State of Tennessee Department of Human Services, letter to Frederick D. Is ler, Assistant Staff

Director, OCRE, USCCR, Apr. 20, 1998, attachment, p. 1.

138 Joyce R. Ringer, Executive Director, Georgia Advocacy

Office, letter to Frederick D. Is ler, Assistant Staff Director,

OCRE, USCCR, Apr. 1, 1998, enclosure, p. 4.

138 Michelle Martin, Staff Services Analyst, Department of

Rehabilitation, State of California Health and Welfare Agency,

letter to Nadja Zalokar, Director, Americans with Disabilities

Act Project, USCCR, May 11, 1998, enclosure, p. 13.

137 Kayla A. Bower, Executive Director, Oklahoma Disability

Law Center, letter to Frederick D. Isler, Assistant Staff

Director, OCRE, USCCR, Apr. 6, 1998, enclosure, p. 3; Amy

130

140
sional wrote that although the technical assistance materials produced by DOJ are very helpful and "DOJ and EEOC have done a good job at

disseminating materials to disability groups,

. . .there still seems to be a need to reach local

public entities who are still in need of a great

deal of assistance."138

Future ADA Technical Assistance Efforts

DOJ's commitment to the ADA technical assistance program remains strong as evidenced

by its fiscal year 1999 appropriation request to

make permanent the 10 term positions that provide support to the information line and the

clearinghouse function.139 This will permit DOJ

to attract and retain skilled staff for this important technical assistance and outreach program.140 The approach to providing technical

assistance is evolving. As previously discussed,

DOJ plans to focus on more user-friendly publications in the future. Publications that are

shorter, less technical, and more focused on a

specific topic will be emphasized. There are no

plans to issue updates to the Technical Assistance Manual although some of the information

dealing with accessibility standards will be rewritten in less technical language and then disseminated in a brochure.141

DRS staff plan to rely less on the use of grants

to develop technical assistance publications in the

future. Technical assistance materials will be for

the most part developed inhouse. Staff has compiled a list of topics for the development of future

outreach materials. DRS staff indicated that

technical assistance and outreach are important

to Acting Assistant Attorney General for Civil

Rights Bill Lann Lee, who wants to use the ADA

technical approach for enforcement of other civil

rights laws,142 so technical assistance will continue to be an important component of DOJ's efforts to enforce the ADA in the future.

Maes, Director, Client Assistance Program, Michigan Protection and Advocacy Service, letter to Frederick D. Isler,

Assistant Staff Director, OCRE, USCCR, Apr. 30, 1998, enclosure, p. 5 (herafter cited as Maes letter).

138 Maes letter, enclosure, p.. 3.

139 Lusher March 1998 interview.

148 Ibid.

141 Ibid.

142 Ibid.

Over the next 5 years, DOJ expects to continue building on its basic servicesthe ADA

information line, ADA home page, ADA speakers

bureau, and the development and dissemination

of new publications. This will include additional

design guides, ADA technical assistance plans,

Commonly Asked Questions, and publications

similar to the ADA guide for small businesses,

the next of which will be targeted to small towns

and townships. The Department will expand its

efforts to educate people at the local level, especially minority and rural populations. DOJ will

undertake new initiatives to educate the public

about the new standards the Department will

adopt for children's facilities, legislative and judicial facilities, and penal facilities, and the

completely revised ADA standards that will be

adopted after the Access Board completes its revisions of the ADA guidelines in 1999.143

The Department also plans to use computer

technology to provide alternative formats for

technical assistance materials. CDROMs, with

ADA regulations, technical assistance documents,

and new illustrated materials, will be developed.

The CDROM will permit DOJ to provide material in alternate formats (e.g., text, large print,

and WordPerfect for Braille) on the same disk as

the other material. It is anticipated that the first

CDROM will include all the current title II and

title III regulations and technical assistance materials to the extent feasible. As new multimedia

segments are developed, DOJ will include them

on new CDROMs, along with any changes in

regulations and the ADA standards.144

131

143 DOJ Answers, Apr. 20, 1998.

144 Ibid.

141
6 Findin s and Recommendations

The ADA is the first of a new generation of

civil rights laws in which Congress assigned

Federal agencies not only the duty to enforce,

but also to inform all parties of their responsibilities and rights under the law. The U.S. Department of Justice (DOJ) has been responsible

for the implementation and enforcement of title

II, subtitle A, of the ADA since enactment of the

act in 1990. To perform its responsibilities under

the act, over the years the Civil Rights Division

has reallocated staff and restructured itself to

concentrate expertise into the Disability Rights

Section (DRS), the section currently and primarily responsible for performing the ADArelated activities of the Department of Justice.

Given its limited resources and extensive responsibilities under the ADA, DRS deserves

positive recognition for several aspects of its

ADA enforcement to date. Perhaps the greatest

strength of DRS' ADA implementation, compliance, and enforcement efforts is its technical assistance and outreach and education program,

which is extremely effective and praised widely

by agency stakeholders. To apprise covered entities of their responsibilities and covered individuals of their rights under the ADA, DRS has

a toll-free information telephone line and Internet Web site, both of which are used heavily. In

addition, DRS has developed numerous userfriendly technical assistance documents, usually

in question and answer format, that provide answers to many of the questions that arise under

title II, subtitle A, of the ADA. Through this system, DRS has provided valuable information to a

significant number of people. Still, DRS has been

criticized for providing inconsistent information,

for taking too long to respond to requests for information, and for failing to reach certain segments of the population, such as small and rural

communities.

Despite limited resources, DRS has made

valiant efforts to deal with its ADA complaint

workload, with mixed success. Although staff

responsible for the ADA grew from 22 in 1992 to

70 in 1997, between these same years DRS received more than 10,000 complaints. To meet

this intense public demand for assistance on

ADA-related issues, DRS focused its efforts in

specific key areas with significant success. To

address a backlog in complaints, DRS streamlined its investigative activities to improve complaints processing. However, DRS officials readily admit that they cannot fulfill the requirement

in the title II regulations that DOJ investigate

and attempt to resolve every title II complaint it

receives. Currently, fewer than 15 DRS staff

members are trained and assigned as investigators for ADA complaints received from the entire

United States. Although it has decreased both

its case backlog and the amount of time cases

typically take to resolve, clearly DRS needs additional staff to effectively investigate and enforce

ADA cases.

The Disability Rights Section's use of alternative dispute resolution or mediation techniques

to resolve complaints of discrimination under

title II is commendable. For many cases, mediation results in an expedited resolution of the

case to the satisfaction of both parties, without

the unnecessary use of DRS resources for investigation, negotiation, or litigation. Reliance on

mediation, although sometimes criticized by

agency stakeholders, has freed up scarce resources that DRS uses effectively in litigation

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and technical assistance and outreach and education activities. However, it is important for

DRS to ensure that it refers the appropriate

cases to mediation and holds in its inventory

complaints that are likely to result in improvements for large numbers of individuals with disabilities, either because the respondent's actions

directly affect many individuals with disabilities

or because the case raises important issues of

law that need to be resolved.

Stakeholders have often criticized DOJ for

mediating or resolving complaints rather than

litigating them to establish case precedent and

develop the law. DRS officials point out, in their

defense, that the title II regulations require DOJ

to attempt to negotiate a resolution to every

complaint before considering litigation. Furthermore, in many issue areas, DOJ cannot litigate a case without a referral from one of the

other designated Federal ADA agencies, and

these agencies have referred few cases to DOJ,

despite DRS' interest in cases that it believes are

important to litigate. Within the confines of

these constraints, DRS has attempted to litigate

in areas that are important and affect large

number of individuals with disabilities. DRS litigation has brought about positive changes in

many areas: clarifying curb cuts, ending unnecessary segregation of persons in institutions,

ensuring accessibility to anonymous voting for

persons with mobility and sight impairments,

and eliminating improper mental health inquiries in professional licensing procedures. DRS has

won important court rulings defining what types

of disabilities, services, and contexts are covered

by, or trigger obligations to comply with, the

ADA. DRS also has successfully obtained consent decrees that have had a major role in clarifying ADA coverage.

DRS has not adequately monitored the ADA

implementation, compliance, and enforcement

efforts of the seven other designated Federal

ADA agencies. This is a significant weakness of

the DRS ADA program. Because of lack of resources, DRS has not assigned staff to that function, and interactions between DRS and the

designated Federal ADA agencies are generally

informal and are usually initiated by the agencies when they need assistance. Given that the

designated agencies have not referred cases to

DOJ in title II areas where it would be important for the Federal Government to engage in

litigation to develop the law, it is evident that

stronger leadership and coordination by DOJ is

necessary.

Another failing of the DRS implementation

program is that it does not develop and publish

indepth policy guidance documents to clarify the

meaning of the law and explain the reasoning

behind the positions it takes in controversial areas. Instead, DRS's policy development is limited

to its enforcement and technical assistance activities, such as investigation of complaints and

negotiation of settlement agreements; litigation

of complaints; filing of ainicus curiae briefs, and

development and dissemination of technical assistance materials. In addition, although DRS

maintains that its regulations provide sufficiently specific guidance and additional formal

policy guidance is unnecessary, disability rights

advocates and other agency officials have indicated otherwise, that more guidance is needed.

The divergent rulings among Federal courts on

title II issues reinforce the need for DRS to develop and publish formal title II policy guidance.

Finally, DRS has been criticized frequently

for setting its own agenda and being unresponsive to stakeholders' concerns and priorities. For

instance, many in the disability community have

faulted DRS for focusing a lot of attention on

accessibility of hotels and stadiums, and less attention on other areas that they believe affect

much larger numbers of individuals with disabilities. Although DRS has only limited control

over its own agenda, which depends in large

measure on which complaints are filed with the

agency or referred to DOJ by the Federal agencies designated to enforce the ADA, its responsiveness to stakeholders could be improved. For

instance, the development of formal policy guidance would be one area where DRS could set its

agenda based on stakeholders' views. In addition, although DRS has informal contacts with

stakeholders and its Chief is receptive to calls

from stakeholders, the Section would benefit

from establishing a formal mechanism for hearing stakeholder advice and opinion.

Given its available resources, DRS's efforts

under title II of the ADA are highly effective.

Many of DRS's failings would be overcome if the

office were provided additional resources. The

U.S. Attorney General has requested that Congress provide a funding increase of 13.7 percent

for fiscal year 1999 to allow DRS to continue and

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expand its vigorous enforcement of the ADA. This

much-needed increase would represent a sound

investment in and renewed commitment to the

elimination of disability-based discrimination.

Chapter 2. Overview of Enforcement of Title II

Budget and Staffing

Finding: DRS has been consistently underfunded and understaffed. This lack of funding

has prohibited the agency from fully realizing its

goals and fulfilling its mission. Currently, DRS

has a staff of 15 investigators, 23 staff attorneys,

and 6 architects. This is insufficient, particularly

the small number of investigative staff for the

thousands of ADA complaints DOJ receives each

year and in staff for monitoring and coordination

of the designated Federal agencies. The Attorney

General has asked Congress for a 13.7 percent

increase in funding for fiscal year 1999. This ad- ditional funding, $1.27 million, would enable

DRS to hire additional attorneys, investigators,

mediators, and architects. These funds have

been earmarked for the following upgrades: (1)

$507,000 for four attorneys and four investigators, as well as funds for architects, and others

who serve as prelitigation consultants to in- crease enforcement efforts; (2) $263,000 in increased funding for two attorneys and three specialists to help other Federal agencies enforce

section 504 of the Rehabilitation Act and title II

of the ADA; and (3) $500,000 in additional

funding to expand the mediation program. However, this proposed allocation of funds will not

sufficiently address the problem. For example,

the addition of only four investigators will not be

enough for DRS to resolve the many ADA complaints it receives annually. DRS has maximized

the effectiveness of its limited resources; therefore, Congress should allocate this additional

funding for the agency. In fact, the Commission

finds that a 13.7 percent increase is insufficient

to address its problems in resolving complaints

in a more timely, efficient manner.'

Recommendation: The Commission emphatically supports the Attorney General's request for additional funding. However, the Attorney General should request (and Congress

should appropriate) more funds for additional

investigative and legal staff, expansion of the

I See chap. 2, pp. 11-13.

mediation program, improved monitoring and

coordination of the other designated Federal

ADA agencies, staff training efforts, and technological upgrades.

Use of Computer Technology for

Technical Assistance

Finding: DRS uses computer technology effectively to provide information on title II of the

ADA and on how to file complaints under the

statute. Although DRS does not have its own

home page, it is possible to obtain information

about DRS from the home page of the Civil

Rights Division.2

Recommendation: DRS should continue to

use computer technology creatively to ensure

that stakeholders have access to the necessary

information to vindicate their rights and fulfill

their responsibilities under title II of the ADA.

For instance, DRS should develop capability for

any individual with a title II complaint to communicate the complaint to DRS over the Internet. DRS should establish a system that allows

staff to respond to questions from the public

through e-mail.

Staff Training Finding: DRS generally has provided its

staff with effective training on the ADA. DRS

gives staff training high priority, and DRS staff

has input into the training provided. Although

DRS has a very strong training program for its

investigators, it has provided little training,

formal or informal, to assist its trial attorneys in

improving their litigation skills.3

Recommendation: DRS should continue to

provide ongoing on-the-job training to its staff on

title II of the ADA. In addition, however, DRS

should ensure that its trial attorneys are afforded

formal training to enhance their litigation skills.

Department of Justice's Strategic Planning

Finding: The DOJ strategic plan for 1997-

2002 guides its budget and sets forth its mission,

long range goals, strategies for meeting goals,

and indicators to measure performance. DOJ's

strategic plan includes a summary of resources,

systems, and processes that are critical to goal

achievement and a somewhat brief description of

2 See chap. 2, p. 13. 3 See chap. 2, pp. 13-14.

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4,4
how its goals and objectives will be achieved.

Although the plan mentions ensuring the civil

rights of people with disabilities as one of its priorities with respect to its goal of protecting civil

rights of all Americans, the plan does not include

specific goals and strategies for this priority or

make specific reference to the ADA.4

Recommendation: The Commission commends DOJ for making civil rights of persons

with disabilities one of its top priorities in its

strategic plan. However, DOJ should include in

its future strategic plans specific strategies and

goals to protect the civil rights of people with

disabilities. For example, at a minimum the

plans should mention the statutes or other Federal laws that protect these civil rights, in this

case, the ADA. In addition, the plans should

specify what the current problems are for the

disability community and the mechanisms DOJ

will develop to address them. Also, performance

indicators should include outcomes of ADA discrimination complaints, resolutions, mediation,

and investigations and litigation.

Coordinating and Monitoring Federal

Agencies' Title IE Enforcement Efforts

Finding: DRS makes only minimal efforts to

fulfill its responsibility to coordinate and monitor the ADA implementation, compliance, and

enforcement efforts of the other designated Federal ADA agencies. Communication between

DRS and the designated agencies takes place on

an informal, ad hoc basis. To date, DOJ has not

entered into memoranda of understanding with

any of the designated agencies or issued guidelines on coordination. DOJ does not adequately

track the cases it refers to the other designated

agencies. For instance, DRS does not require the

designated agencies to provide feedback on the

referred cases until after they are closed, and

only a small percentage of the cases has been

closed. Furthermore, DOJ has no mechanism in

place for tracking ADA complaints that are received directly by other Federal agencies. DRS

has not done even minimal monitoring of the

other designated ADA agencies. According to

DRS, monitoring and evaluating the designated

agencies' resources devoted to ADA enforcement

efforts is difficult, because these agencies do not

maintain separate budgets for this statute.

4 See chap. 2, pp. 16-17.

The lack of monitoring, coordination, and

communication has hindered effective title II

enforcement in a number of ways. First, the

designated agencies have referred few title II

cases to DOJ for litigation. Under title II, DRS

does not have independent authority to handle

cases that fall to the designated agencies; it can

do so only by referral. However, the agencies

have not referred many cases to DRS.5 Expanded communication between the respective

enforcement staffs could foster information

sharing and facilitate referral of cases. Second,

the lack of communication between DRS and the

other designated agencies may mean that

building accessibility complaints are not being

addressed adequately. Many accessibility complaints fall under the jurisdiction of the designated agencies, which have rarely contacted

DRS staff for advice or assistance.

The Attorney General has asked Congress for

funds to increase or improve coordination activities, specifically, for two attorneys and three

specialists to fulfill DOJ's coordination responsibilities to other Federal agencies as they enforce

title II of the ADA.6

Recommendation: As the lead agency

charged with enforcing title II, subtitle A, of the

ADA, DRS should provide more leadership and

guidance to and develop enhanced communications and information sharing with the Federal

agencies designated to enforce the ADA. The

DRS Chief should hold regular, biennial meetings with responsible officials in the designated

agencies to ensure that they are well informed of

the ADA enforcement issues DRS has identified

and to exchange information about what the

agencies are doing to enforce the ADA. DRS

should enter into memoranda of understanding

or issue guidelines on coordination with the

designated agencies. DRS should track title II

complaints it refers to the designated agencies

as well as complaints filed directly with those

agencies. DRS should require the designated

agencies to provide a quarterly status report on

all title II complaints in their inventories. In addition, this status report should contain budget

and staffing information about the agency's ADA

operation. Finally, Congress should appropriate

5 See chap. 2, pp. 19-22. 6 See chap. 2, pp. 12-13.

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the funds requested by the Attorney General to

improve DRS coordination activities.

Investigations Finding: The title II regulations state that

DOJ must investigate and attempt to resolve

every complaint it receives. DOJ officials acknowledge that they cannot investigate every

complaint. The Attorney General's requested

budget increase, which includes four additional

investigators, will not be sufficient to address

the lack of investigative staff.? Recommendation: The Attorney General

should request additional funds to reflect the

need for more investigators. Specifically, DRS

should estimate the number of incoming and

pending cases and request funds to increase investigative staff accordingly.

Alternate Dispute Resolution/

Mediation Process

Finding: A primary emphasis of DRS' title II

complaints process, as required by the title II

regulations, is resolving discrimination complaints by voluntary means rather than litigation. DRS is innovative in using alternative dispute resolution (ADR) techniques, such as mediation, to resolve complaints voluntarily, and

DOJ's 1997-2002 Strategic Plan emphasizes the

Department's intention to use alternative dispute resolution where appropriate to avoid litigation. Mediation has the advantage of resolving

complaints quickly to the satisfaction of both

parties, with considerably less expenditure of

scarce resources than litigation. DOJ provides

complainants with a brochure that explains the

ADR process. Although some parties decline the

option of alternative dispute resolution, many

title II claims of discrimination are resolved

through these informal methods. During 1998,

DRS expects to develop policies and procedures

for alternative dispute resolution.8 Recommendation: The Commission commends DRS for its innovative use of alternative

dispute resolution. In addition, DRS should continue to provide user-friendly informational brochures to inform parties to a complaint about

alternative dispute resolution techniques and

how they differ from the traditional complaints

7 See chap. 2, p. 13.

8 See chap. 2, pp. 26-28.

investigation process. However, since alternative

dispute resolution is a central component of the

Department's title II complaints process,

DOJ/DRS should issue policies and procedures

for alternative dispute resolution as expeditiously as possible.

Litigation Finding: Although DOJ' is authorized, under

the title II regulations, to initiate litigation that

arises from its own investigations and upon referral from the seven designated Federal agencies, some members of the disability community

have criticized DRS for litigating too seldom and

mediating too often. These critics generally believe that DRS should direct more resources toward establishing legal precedent that will be

binding on parties in subsequent cases.9

Recommendation: DRS should develop a

balanced enforcement strategy to ensure that

cases that are important for developing legal

precedent are litigated, while others are mediated. Furthermore, DRS should seek input from

stakeholders in developing this strategy, including their views on which areas and issues

need to be litigated. DRS also should make efforts to inform stakeholders about its enforcement strategy and the rationale behind it.

Finding: Although DRS has written amicus

briefs and has intervened as a colitigant in preexisting private litigation, a review of DRS' quarterly status reports shows that DOJ has initiated

litigation against public entities under title II in

only three cases. One reason for this is that State

and local governments tend to comply with title II

voluntarily before DRS seeks approval to litigate.

Another reason is that designated agencies have

not referred title II cases to DOJ.b0

Recommendation: DRS should be more aggressive in initiating litigation against public

entities (State and local governments) under title II, particularly in cases such as accessibility

in courthouses and other public buildings. DRS

should improve its coordination of and communication with the Federal designated ADA agencies so they will refer meritorious cases, particularly those on provision of integrated settings in public healthcare, to DOJ for litigation.

9 See chap. 2, p. 29.

10 See chap. 2, p. 30.

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Analysis of Complaint Processing Data

Finding: DRS does not have the same database capability as the U.S. Equal Employment

Opportunity Commission. Its database system,

CMS, is outdated and runs on software that only

allows DRS to generate "canned" or preset reports. The database cannot be used for trend

analysis. Furthermore, DRS' complaints database appears to contain numerous errors. Some

of the variables listed in the dataset do not contain values. In some instances, nearly threefourths of the complaints have data fields that

are empty."

Recommendation: DRS should develop an

up-to-date database system that enables it to

track complaints and do trend analyses. In addition, DRS should implement a quality control

system to ensure that the data entered into the

database are complete and accurate. DRS also

should encourage the designated Federal ADA

agencies to use the same database system for

their ADA complaints, so that a uniform system

exists for all ADA complaints.

Chapter 3. Assessment of Title II Enforcement and Policy Development

Policy Development

Finding: DOJ/DRS develops ADA policy

primarily through its technical assistance and

enforcement activities, such as litigation and

amicus briefs. DRS then disseminates this policy

in the form of technical assistance that is in a

format the general public can understand more

easily. These methods of developing policy do not

provide an opportunity for disability advocacy

groups to participate in the policy development

process, whereas if formal guidance documents

were drafted and published, the public could offer comment.

Disability rights advocates who question the

efficacy of the DRS ADA litigation program point

to (1) DRS litigation activities that do not adequately respond to issues faced by persons with

disabilities, such as insurance concerns; (2) no

DRS role, as litigant or ainicus, in cases involving mental illness; and (3) little activity on issues relating to individuals with mental disabilities. (DOJ has filed only one amicus brief on a

case involving mental disability.) Finally, advocacy groups contend that they have more access

11 See chap. 2, pp. 30-31.

to and act in an informal advisory capacity to the

Equal Employment Opportunity Commission

than to the Department of Justice.12

Recommendation: DRS should establish a

mechanism through which its stakeholders and

members of the general public can offer comment on proposed ADA policy and its litigation

strategy. Specifically, DRS should provide an

opportunity for public input on both the resources DRS dedicates to litigation and the issues it litigates. In addition, DRS should issue

formal policy documents developed through a

process that allows public comment. DRS also

should explore the possibility of establishing a

formal advisory board representative of persons

with disabilities and other stakeholders to provide input to DRS staff as to which cases to litigate. Finally, DRS should be more aggressive in

its policy implementation and litigation activities under title II. For example, DRS should issue policy guidance and conduct more litigation

related to people with mental disabilities. DRS

should file more ainicus briefs in cases involving

mental disabilities.

Enforcement of ADA

Administrative Requirements

Finding: DOJ issued regulations to implement title II, subtitle A, of the ADA that set forth

specific administrative procedures public entities

must follow to comply with title II. These administrative requirements include providing notice to

the public to ensure that persons with disabilities

are aware of their rights, conducting a selfevaluation of current policies and practices, establishing transition plans to comply with the

ADA, and establishing ADA contact persons and

grievance procedures. However, it is evident that

many towns and municipalities, particularly

small, rural governments, have not taken any action to comply with the ADA. For instance, courts

in one State have not established ADA grievance

procedures and major State agencies have not

designated the ADA coordinators or contact persons required by title II.13

Recommendation: DRS should make available sample transition and self-evaluation plans

to provide guidance to State and local governments on their responsibilities under title II.

12 See chap. 3, pp. 39-40.

13 See chap. 3, pp. 40-42.

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DRS also should undertake other steps to improve its enforcement of title II's administrative

requirements. For example, DRS should promote

uniform policies and procedures for State courts

by participating more actively in judicial conferences conducted by State supreme courts. To

ensure that more public entities designate ADA

coordinators, DRS should require local entities

to report annually the names of their ADA coordinators to the State ADA coordinator. DRS

should verify that State and local governments

have designated ADA coordinators, perhaps

through collaboration with the Protection and

Advocacy System.

Accessibility

Program Access

Finding: One of the major technical assistance ADA challenges DRS faces under title II is

that many public entities do not understand

program accessibility, even though the concept

has existed since the enactment of section 504 of

the Rehabilitation Act of 1973. To address this

lack of knowledge about program accessibility,

DRS has developed a grant for small towns and

another grant for title II entities. DRS also plans

to produce a document for small towns that is

similar to the ADA guide for small businesses, to

help small towns become aware of DRS and

other resources. However, at least one representative of small towns has criticized the draft

document as too legalistic to be useful.14

Recommendation: DRS should produce and

disseminate a guide targeted to educating local

government officials about their responsibilities

under title II of the ADA. This effort should be

coordinated with DRS' efforts to verify that State

and local governments have designated ADA

coordinators. All guides and other technical assistance information should be sent directly, to

ADA coordinators.

Architectural Access

Finding: DOJ has taken the position that,

because architects draw plans and design

buildings, they are responsible for ensuring that

their designs comply with the ADA. In the

building industry, the view is not so clearcut on

accountability. Many architects apparently believe that building owners, not architects, should

14 See chap. 3, p. 45; see also chap. 2, p. 22.

be liable when compliance is not met, because

owners often do not allow them to design accessible buildings and take their business elsewhere

if architects do not follow their instructions.15

Recommendation: DRS should communicate clearly its position that architects are responsible for designing buildings that are accessible to persons with disabilities and in compliance with the ADA. In addition, DRS should continue its ongoing outreach and technical assistance activities, such as the production and dissemination of written technical assistance materials and speeches, workshops, conferences, and

other public media. DRS also should work with

academic institutions, such as schools of architecture, to ensure that ADA requirements are

included in their curricula.

Effective Communication

Finding: DRS has not provided clear and

comprehensive guidelines for effective communication requirements under title II of the ADA.

Some State and local courts have refused to provide sign language interpreters for persons with

hearing impairments, or have charged fees for

interpreters' services. Part of the reason for this

may be lack of understanding of ADA requirements among public entity officials. It also may

be due to public entities' failure to designate

and/or support ADA coordinators.16

Recommendation: DRS should adopt a

three-pronged approach to addressing State and

local government agencies' failure to provide effective communication to individuals with disabilities. First, DRS should develop policy guidance and do more litigation in this area. Second,

DRS should continue to develop and disseminate

outreach and education materials for local government entities to inform them of their responsibilities under the ADA. Finally, public entities

should ensure that ADA coordinators are in

place and educated about their role.

1 Finding: Although DRS investigates a

higher percentage of the title II complaints relating to effective communication than of the

title III complaints in this area submitted to

DOJ, DRS has not been as active in initiating

litigation on title II issues. Furthermore, at least

15 See chap. 3, pp. 45-46.

16 See chap 3, pp. 53-54.

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one disability advocate wrote that DRS has been

responsive in providing assistance to disability

rights advocates in title III cases, but has not

been as active in title II cases. DRS participation

in title III cases has led to quick compliance by

commercial entities. Similar Federal attention in

title II cases likely would reduce instances of

noncompliance.17

Recommendation: DRS should be more aggressive in initiating title II lawsuits, particularly since DOJ is the only Federal agency

authorized to litigate against State and local

government entities. DRS should involve itself

more fully through litigation and policy guidance

in shaping the development of title II law.

Public Employment

Finding: DOJ has taken the position that title II of the ADA applies to public employment

and specifically included a provision on employment in its title II regulation. DRS also has produced technical assistance materials and participated in litigation to support this position.

Several courts have held title II does cover public employment issues despite the fact that the

ADA statute itself does not mention employment

under title II.18 The Commission supports DOJ's

position and recognizes the need for clear resolution of this issue.

Recommendation: DRS should participate

in judicial training conferences throughout the

United States to educate judges regarding the

applicability of title II to public employment.

This participation should include formal speaking presentations and the dissemination of written materials. DRS should select cases to litigate

and establish caselaw in this area that courts

will be bound to follow.

Finding: DOJ has not provided clear guidance on the relationship between titles I and II

in public employment. Both title I, the employment provisions, and title II, public entity provisions, apply to employees of public entities.

However, key DOJ technical assistance materials do not explain clearly when public entity employees' complaints should be filed under title I

or title II.19

11 See chap. 3, p. 56.

18 See chap. 3, pp. 59-61.

19 See chap. 3, pp. 60-61.

Recommendation: Through technical assistance and policy materials, DOJ should explain

more clearly the relationship between titles I

and II in public employment. DOJ should explain under which circumstances a public employee would appropriately file a claim under

title I and under which circumstances the claim

would be filed more appropriately under title II.

For instance, DOJ could provide examples of

scenarios in its technical assistance materials.

Finding: Employment discrimination under

title II is a very important area of ADA law and

policy, in large part because so many people

work for State or local governments and the

many facilities and services they provide. DOJ

has included public employment in its title II

regulations, it has issued guidance in the form of

policy letters and technical assistance, and it has

filed a few amicus briefs. However, DOJ has not

issued a formal policy guidance that would benefit legal, investigative, and administrative staff

in DRS. Furthermore, DOJ has not taken an active role in litigation on this issue.20

Recommendation: As the only Federal

agency authorized to litigate employment cases

against State and local government entities,

DOJ should play a more active role in litigating

public employment cases under title II. DRS

should disseminate policy developed through

such litigation to the general public in the form

of outreach and education materials. Coordination of EEOC and DOJ activities should be enhanced by creating more interaction between

DRS enforcement staff and EEOC investigators

and attorneys. For example, DRS attorneys,

whose expertise is mainly in disability law, could

learn about employment law issues from EEOC

attorneys. Because this is such an important

area, DRS should incorporate an employment

law component into its training program.

Chapter 4. Title U Policy and Enforcement in Specific Contexts

Law Enforcement and Emergency Services

Finding: DOJ has addressed carefully many

important issues regarding the treatment of individuals with disabilities by law enforcement

and emergency services personnel. DOJ has

done this through its regulations, arnicus briefs,

20 See chap. 3, pp. 59-61.

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149
policy letters, and technical assistance materials.

DOJ and its grantees have provided many technical assistance materials, such as brochures,

pamphlets, and short videos. Although these

documents are helpful to front-line law enforcement officers and emergency services personnel,

law enforcement and emergency services policy

makers and administrators should be provided

with more comprehensive policy guidance on

title II law enforcement issues.21

Recommendation: DRS should issue a

comprehensive policy guidance on title II issues

for law enforcement and emergency services.

This document should review relevant caselaw

and synthesize the information already provided

in the diverse documents DRS has issued on this

topic. This document should be distributed to

public entity ADA coordinators and law enforcement and emergency services agency administrators.

Finding: DOJ has not sufficiently addressed

law enforcement and emergency services employment issues. One such issue is alcoholism

among law enforcement and emergency services

personnel. DOJ has not provided guidance to law

enforcement and emergency services agencies to

better inform them of hiring and personnel policies and contribute to an alleviation of discrimination against employees.

Furthermore, DOJ has not adequately addressed the question of reasonable accommodation. Public entities have not made much progress in adapting working conditions for individuals with disabilities who are qualified to

work. In addition, although DOJ has joined in

private litigation and has submitted ainicus

briefs, it has not initiated litigation against law

enforcement or emergency services agencies that

have been charged with discriminating against

employees with disabilities.22 This is a serious

omission given that DOJ is the only Federal

agency that can initiate litigation against State

and local government entities.

Recommendation: DOJ should develop and

publish additional technical assistance guidance

for title II implementation to promote better

hiring policies and improve treatment of workers

who acquire a disability during employment.

21 See chap. 4, pp. 65-73. 22 See chap. 4, pp. 77-78.

DOJ should provide these materials to policy

makers and administrators in law enforcement

and emergency services agencies. Furthermore,

DOJ should play a more active role in litigating

cases involving law enforcement and emergency

services personnel who have experienced employment discrimination based on disability.

Prisons

Finding: Inmates with disabilities often suffer from disability-based discrimination and oppression and generally do not have equal access

to correctional institutions' physical structures

or to rehabilitative, educational, and work programs offered other inmates. Many prisons are

not designed to be accessible to individuals with

physical disabilities. Qualified inmates with disabilities often are excluded from prison programs that might gain them earlier release or

enhance their chances of surviving on the outside after their release, because officials in correctional institutions do not provide reasonable

accommodations as required by the ADA.23

Recommendation: DRS should ensure,

through vigorous enforcement of title II of the

ADA as well as targeted technical assistance,

outreach, and education, that inmates with disabilities are provided equal access in correctional

institutions' physical structures and to programs

for prisoners and are not subject to violence or

discrimination based on their disabilities.

DRS should provide technical assistance and

training to officials and staff of State and local

correctional institutions to ensure that they

know their responsibility to provide reasonable

accommodations, from modifying physical structures to providing assistive devices to altering

program requirements, to qualified inmates with

disabilities. DRS should make a special effort to

disseminate to corrections officials information

on strategies for providing reasonable accommodations, such as information on individually tailored auxiliary aids and services and devices

that facilitate effective communication cost effectively. DRS should work closely with advocacy

groups and other organizations to ensure that

corrections officials are informed of the most

current assistive devices and services and how

they can be used in a correctional setting. DRS

technical assistance materials should explain

23 See chap. 4, pp. 78-83.

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that providing such reasonable accommodations

may enable inmates with disabilities to reduce

their need for assistance from staff and benefit

from corrections programs, services, and activities to the same extent as their peers without

disabilities. In addition, DRS should investigate

complaints of unequal treatment of prisoners

with disabilities, obtain relief when discrimination occurs, and if necessary litigate cases of discrimination to demonstrate its intent to enforce

the law.

State and local entities responsible for prisons and jails should follow the accessibility

guidelines for correctional institutions developed

by the U.S. Architectural and Transportation

Barriers Compliance Board to eliminate architectural and other structural barriers and enable

visually impaired and wheelchair-bound inmates, staff, and visitors to navigate their way to

and from cells, hygiene facilities, cafeteria, and

other areas, as well as throughout the hallways.

Similarly, they should ensure that prisons and

jails are equipped with emergency warning systems with flashing lights so that hearingimpaired inmates and staff can be alerted to

evacuate the facility during an emergency.

Finding: Individuals with cognitive deficits,

hearing impairments, and HIV face particular

difficulties and challenges that require reasonable accommodations in correctional facilities.

The frequent "invisibility" of these disabilities

distinguishes them from visible physical disabilities. Inmates with disabilities are targets for

physical violence; and inmates with certain disabilities and diseases, such as those who are infected with HIV, have required protection from

staff who hold prejudices against them.24

Recommendation: DRS should fund workshops at correctional associations' meetings that

provide sensitivity training about the special

needs of individuals with disabilities. Grants

could be given to teach corrections officials how

to handle and be patient with inmates with specific disabilities. Similarly, training should be

provided to inmates without disabilities to assist

their peers with disabilities. The training should

be developed in consultation with disability advocacy groups and Federal agencies that administer programs for and are concerned with indi24 See chap. 4, p. 78-79.

viduals with disabilities. Furthermore, DRS

should work more closely with State and local

ADA coordinators who will then be better able to

ensure that jail and prison staff who verbally or

physically assault any inmate are disciplined.

Finding: Statistics on the number of individuals with disabilities in the Nation's prisons

are sparse. The need for more statistics is clear.

Statistics are extremely important in developing

policy and planning its implementation, such as

required architectural/accessibility changes.

Corrections officials, for instance, can use data

on the numbers and characteristics of inmates

with disabilities to plan for changes in the disabled inmate population and construct new or

modify existing facilities accordingly. In addition, statistics can be useful to determine

whether inmates with disabilities are serving

disproportionately longer sentences than inmates without, since often inmates with disabilities are denied access to rehabilitative programs

that can allow them to earn credit that can

shorten their sentences.25

Recommendation: DOJ should collect and

make readily available data that show past

trends and future projections of the number of

inmates with specific cognitive, sensory, and

mobility disabilities, as well as multiple disabilities. These data should be accessible in printed

and electronic formats. DOJ should publish the

data annually, tabulated by State and by demographic characteristics such as race, color, national origin, age, and geographical region.

State Licensing Activities

Finding: Title II does not set forth testing

standards related to State licensing activities,

but title III does. DOJ's position is that title III's

testing standards "are useful as a guide for determining what constitutes discriminatory conduct by a public agency in testing situations under both titles I and II." In Rosenthal v. New

York Board of Law Examiners, the court relied

on title III regulations even though it was a title

II case, because title III regulations discuss professional licensing and testing procedures that

title II regulations do not.26

25 See chap. 4, p. 78. 26 See chap. 4, pp. 89-91.

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Recommendation: DRS should issue policy

explaining the distinctions made by the courts

when addressing State licensing procedures.

DOJ should issue comparable regulations or

policy guidance on testing requirements to provide the same kind of detail and comprehensiveness it has in its title III guidance.

Technology and Web Sites

Finding: Cost can be a major barrier that

impedes access to assistive technology for individuals with disabilities. According to a disability advocacy group, expenditures for adapted

computers, communication devices, switches,

and other technological aids that enable individuals with disabilities to participate in society

can be substantial. In 1996, former Senator Robert Dole expressed concern that "thousands of

the Nation's disabled individuals" cannot afford

assistive technologies, some of which cost thousands of dollars. Limited funding is available

through various Federal programs.27

Recommendation: DRS should provide

technical assistance to the State and local governments under its jurisdiction on making costeffective purchases of certain assistive technology devices that can be used by disabled individuals who are active beneficiaries of particular

programs and services. DRS could also offer

grants to State and local governments to purchase auxiliary aids and services that can enable

individuals with disabilities to access, participate in, and benefit from programs, services, and

activities.

Finding: To date, .DOJ has not taken a position in its policy guidance or technical assistance

documents as to whether Web sites constitute

services provided by State and local governments and, therefore, under title II, must be

equally accessible to individuals with disabilities. DOJ has indicated that State and local governments may provide information on the Web

sites through alternate formats such as mailing

information in written, Braille, or large print

format and that this is adequate to ensure the

program access for persons with disabilities required by title II. These alternate formats do not

afford the same advantages and conveniences as

27 See chap. 4, p. 108.

Web sites, such as instant access to information.28

Recommendation: DOJ should develop and

publish a policy guidance document clarifying

that Web sites provided by State and local governments are services under title II of the ADA.

Finding: With the Internet expanding and

with hundreds of new Web sites being added

every day, the issue of Web site accessibility for

individuals with disabilities will become more

urgent as time goes by. Educational institutions

and government entities increasingly rely on the

World Wide Web to locate, collect, and disseminate information to the public. DRS has not

taken any significant action to ensure that the

issue of Web site accessibility for individuals

with disabilities is addressed by State and local

governments. In particular, DRS has not developed or issued any accessibility standards for

Web sites.29

Recommendation: State and local governments should ensure that individuals with vision

impairments or mobility impairments, as well as

other individuals with disabilities, have equal

access to all information and services they offer

on the World Wide Web. DRS should become

more active in its efforts to ensure equal access

to State and local government Web sites for individuals with disabilities. To ensure that State

and local governments' efforts in this area conform to title II requirements, DRS should develop guidelines for State and local Web site accessibility. DRS should frame these guidelines in

terms of what "access" means rather than by

providing specific technology recommendations

because Internet technologies are constantly

growing and changing. DRS should hire experts

to help develop the guidelines.

In addition, DOJ should take the lead in developing new and creative ways for people with

disabilities to access the same computer technologies as people without disabilities. For example,

DOJ should participate in the efforts of technology-related research organizations, disability advocacy groups, and other Federal agencies. Furthermore, DRS should provide technical assistance, outreach, and education on Web site acces28 See chap. 4, pp. 109-12. 29 See chap. 4, pp. 109-15.

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sibility, through grant-funded training conferences for State and local government personnel.

Chapter 5. Title II Outreach, Education, and Technical Assistance

Finding: The ADA technical assistance plan

stated that the Attorney General may require

the agencies responsible for implementing and

enforcing the ADA to provide periodic reports on

progress in meeting their mandate. DOJ has not

implemented this provision, primarily because of

internal computer-related problems and other

technical assistance priorities. However, the

technical assistance staff hopes that these problems have been resolved and that, in the near

future, DOJ will be able to prepare and disseminate a report on ADA technical assistance and

outreach efforts by the responsible Federal

agencies.30

Recommendation: DOJ should issue a

summary report of its technical assistance efforts and those of the designated Federal agencies in implementing the ADA over the last few

years. Thereafter, DOJ should issue progress

reports every 12 to 18 months.

Finding: Initially, DOJ's outreach and education and technical assistance staff did not

make an extensive effort to reach underserved

communities, such as individuals with disabilities living in rural and minority communities.

More recently, DRS staff has placed a greater

emphasis on reaching these communities with

information on their rights under the ADA. Staff

also are participating in a task force at the

President's Committee on Employment of People

with Disabilities that is designed to focus on outreach and technical assistance to the disabled

minority community.31

3° See chap. 5, pp. 117-18. 31 See chap. 5, pp. 127-31.

Recommendation: DOJ should evaluate the

effectiveness of its outreach, education, and

technical assistance to underserved areas such

as rural or minority communities. The agency

should give consideration to establishing an advisory committee to assist staff in the evaluation. DOJ should develop a plan that would focus

on reaching these underserved groups. DOJ should issue a report on the results of that

evaluation and the plans to meet the needs of

the underserved in the disability community.

Finding: DRS appears to have made good

use of its staff resources in carrying out its outreach, education, and technical assistance program in support of the ADA. Of particular note

are the resources allocated to the staffing of the

ADA information line and providing support to

the clearinghouse function. Calls to the toll-free

line average 250 to 350 per week, but when

there is publicity about the ADA, the number

can increase dramatically. For example, after a

mailing to small businesses through the IRS

quarterly mailing, the staff received over

100,000 telephone calls. In FY 1997, the staff

received more than 120,000 calls, and the number has continued at a high level. DRS has requested that the initial allocation of 10 term appointment slots be made permanent in the FY

1999 budget request.32

Recommendation: DOJ should make DRS'

10 positions supporting the ADA information

line and clearinghouse functions permanent. In

addition to its toll-free information line fax on

demand services, DOJ should also develop an

Internet or e-mail service though which DOJ can

respond to inquiries relating to disabilities. Finally, DRS should ensure that all staff has an

opportunity to operate these various information

services so they are familiar with and knowledgeable issues affecting people nationwide.

32 See chap. 5, pp. 119,123-27.

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Journals, Papers, and Manuscripts Reginald J. Alston, Tyronn J. Bell, Sonja Feist-Price, "Racial Identity and African Americans with Disabilities: Theoretical and Practical Considerations," Journal of Rehabilitation (April/May/June

1996), pp. 11-15. M. Jocelyn Armstrong and Maureen H. Fitzgerald, "Culture and Disability Studies: An Anthropologi- cal Perspective," Rehabilitation Education, vol. 10,

no. 4 (1996), pp. 247-304. Charles A. Asbury et al., "Attitudinal and Perceptual Correlates of Employment Status Among African Americans with Disabilities," Journal of Rehabilitation (April/May/June 1994), pp. 28-32. Marjorie L. Baldwin, "Can the ADA Achieve its Em- ployment Goals?," The Annals of the American

Academy (January 1997), pp. 37-52. Marjorie Baldwin and William G. Johnson, "Labor Market Discrimination Against Men with Disabilities," The Journal of Human Resources, vol. 29, no.

1 (Winter 1994), pp. 1-19. Sharon N. Barnartt, "Disability Culture or Disability

Consciousness?," Journal of Disability Policy

Studies, vol. 7, no. 2 (1996), pp. 1-19.

Andrew I. Batavia, "Ideology and Independent Living: Will Conservatism Harm People with Disabilities?" The Annals of the American Academy

(January 1997), pp. 10-23. Andrew I. Batavia, "Relating Disability Policy to Broader Public Policy: Understanding the Concept of 'Handicap'," Policy Studies Journal, vol. 21, no.

4 (1993), pp. 735-739. Edward D. Berkowitz, "Disabled Policy: A Personal Postscript," Journal of Disability Policy Studies,

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Herbert L. Bernsen and Glenn E. Gauger, "ADA's

Impact: Requirements for Cell and Housing Design," Corrections Today (April 1995), pp. 96-102. Ernest F. Biller, "Employment Testing of Persons with Specific Learning Disabilities," Journal of

Rehabilitation (January/February/March 1993),

pp. 16-23.

Peter C. Bishop and Augustus J. Jones, Jr.,

"Implementing the Americans with Disabilities Act of 1990: Assessing the Variables of Success," Public Administration Review, vol. 53, no. 2

(March/April 1993), pp. 121-128. Peter David Blanck, "Empirical Study of the Ameri- cans with Disabilities Act (1990-1993)," Journal of Vocational Rehabilitation, vol. 4, no. 3 (1994),

pp. 211-223. Frank G. Bowe, "Access to the Information Age: Fun- damental Decisions in Telecommunications Policy," Policy Studies Journal, vol. 21, no. 4 (1993),

pp. 765-774.

Suzanne M. Bruyere, Dale S. Brown, and David M. Mank, "Quality Through Equality: Total Quality Management Applied to the Implementation of Title I of the Americans with Disabilities Act of

1990," Journal of Vocational Rehabilitation, vol. 9

(1997), pp. 253-266. Richard V. Burkhauser, "Beyond Stereotypes: Public Policy and the Doubly Disabled," The American Enterprise (no date), pp. 60-69. Richard V. Burkhauser, "Post-ADA: Are People with Disabilities Expected to Work?," The Annals of the

American Academy (January 1997), pp. 71-128; Richard V. Burkhauser, Robert H. Haveman, and

Barbara L. Wolfe, "How People with Disabilities Fare When Public Policies Change," Journal of Policy Analysis and Management, vol. 12, no. 2

(1993), pp. 251-269. Wayne F. Cascio, "The Americans with Disabilities Act of 1990 and the 1991 Civil Rights Act: Re- quirements for Psychological Practice in the

Workplace," pp. 175-211 in Bruce D. Sales and

Gary R. VandenBos, eds., Psychology in Litigation

and Legislation (Washington, DC: American Psychological Association, 1994). James I. Charlton, "The Disability Rights Movement and the Left," Monthly Review, vol. 46, no. 3 (JulyAugust 1994), pp. 77-85. Dale Close, "Arrest Procedures Under the ADA," The

Policy Chief (April 1995). Troy Coleman and Rebecca Furr, "The Americans with Disabilities Act: Crisis or Challenge for

. Workforce 2000?" Public Management (April

1992), pp. 4-8. Frederick C. Collignon, "Is the ADA Successful? Indi- cators for Tracking Gains?," The Annals of the American Academy (January 1997), pp. 129-147. Ellen D. Cook, Anne K. Judice, and Anita C. Hazelwood, "The Americans with Disabilities Act: Prescription for Tax Relief," 1997HFM Resource

Guide (undated). David Copus, "Americans with Disabilities Act: Conduct and Drug/Alcohol Issues, Benefits Issues, Mental Disabilities Cases," April 1997, in National Em- ployment Law Institute, 1997 Americans with Disabilities Act Compliance Manual (Washington, DC: National Employment Law Institute, 1997).

13 0 BEST COPY AVAILABLE
Barbara C. Deinhardt, "Title I of the Americans with

Disabilities Act and Workers' Compensation: A

Call for Discussion," Employee Benefits Journal, vol. 18, no. 4 (December 1993), pp. 20-27. Gerben De Jong and Andrew I. Batavia, "The Ameri- cans with Disabilities Act and the Current State of

U.S. Disability Policy," Journal of Disability Policy Studies, vol. 1, no. 3 (Fall 1990), pp. 65-82. Denetta L. Dow ler, Anne E. Hirsh, Ryan D. Kittle, and Deborah J. Hendricks, "Outcomes of Reasonable Accommodations in the Workplace," Technology and Disability, vol. 5 (1996), pp. 345-354. Chai R. Feldblum, "Employment Protections," Milbank Quarterly, vol. 69, supp. 2 (Winter 1991), pp. 81-110).

Thomas F. Fisher and Patricia A. Bender, "Medical

Inquiry for Employment Before and After Title I of

the Americans with Disabilities Act of 1990: The

Role of the Rehabilitation Counselor," Journal of

Rehabilitation (October/November1995), pp. 62-65. Keith Fitzgerald, "The Politics of Plagues: Responses

to the AIDS Epidemic in Historical Perspective,"

Journal of Policy History, vol. 8, no. 2 (1996k), pp. 253-259.

Robert B. Fitzpatrick and Jonathan R. Topazian, "Understanding the Family and Medical Leave Act," Trial (March 1995), pp. 34-39. Catherine L. Flanagan, "The ADA and Police Psy- chology," The Police Chief (December 1991), pp. 14-16.

David K. Fram, "Complex Issues Regarding Disability- Related Questions and Medical Examinations Under the ADA," April 1997, in the National Employ- ment Law Institute, 1997 Americans with Disabilities Act Compliance Manual (Washington, DC: National Employment Law Institute, 1997), p. 18. Gary D. Friedman and Joyce Phillips, "Is Infertility

an ADA 'Disability'?" The National Law Journal, Feb. 24,1997.

James G. Frierson, "Medical Treatments Should Not Be Considered When Courts Determine 'Disability' Under ADA," Employment Discrimination

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Health Policy Issues into the Next Century," International Journal of Technology and Aging, vol. 4, no. 2 (Fall/Winter 1991), pp. 115-127. Jennifer M. Gardner, "Worker Displacement: A Dec- ade of Change," Monthly Labor Review (April 1995), pp. 45-57. Lawrence 0. Gostin, "The Americans with Disabilities

Act Litigation Project," unpublished manuscript (undated).

Lawrence 0. Gostin, "Public Health Powers: The Imminence of Radical Change," (unidentified publi- cation).

Vicki Gottlich, "Protection for Nursing Facility Resi- dents Under the ADA," Current Ethical Issues in

Aging (Winter 1994), pp. 43-47. Bruce Growick, "ADA and Workers' Compensation: What are the Critical Issues?" Work Injury Management (July/August 1993), pp. 7-9. Bruce S. Growick and Patrick L. Dunn, "The Americans with Disabilities Act and Workers' Compen- sation: Critical Issues and Major Effects," Cornell University, School of Industrial Relations and the

National Institute on Disability and Rehabilitation Research.

Thomas E. Guild, "The Americans with Disabilities

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Gwen Thayer Handelman, "Health Benefit Plans and

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Gary F. Holmes, "The Historical Roots of the Empow- erment Dilemma in Vocational Rehabilitation,"

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Nancy Lee Jones, "Essential Requirements of the Act: A Short History and Overview," Milbank Quarterly, vol. 69, supp. 2 (Winter 1991).

Mary Louise Kandyba, "Protecting Railroad Workers

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Robert F. Kilbury, John J. Benshoff, and Stanford E. Rubin, "The Interaction of Legislation, Public Attitudes, and Access to Opportunities for Persons

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John A. Leonard, "The Americans with Disabilities

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Monica E. McFadden, "The Americans with Disabilities Act: Fighting Discrimination," Trial

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Dennis Moore and Jo Ann Ford, "Policy Responses to Substance Abuse and Disability: A Concept Pa- per," Journal of Disability Policy Studies, vol. 7,

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Nancy R. Mudrick, "Employment Discrimination Laws for Disability: Utilization and Outcome," The Annals of the American Academy (January 1997),

pp. 53 -83.. Mary Anne Nester, "Pre-Employment Testing and the ADA," Cornell University, School of Industrial and Labor Relations and National Institute on Disability and Rehabilitation Research, 1993). Susan R. Noe, "Societal Concerns: Discrimination Against Individuals with Mental Illness," Journal

of Rehabilitation (January/February/March 1997),

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David Pfeiffer, "Overview of the Disability Movement: History, Legislative Record, and Political Implications," Policy Studies Journal, vol. 21, no. 4 (1993),

pp. 724-734. Gary Phelan, "Reasonable Accommodation: Linchpin of ADA Liability," Trial (February 1996), pp. 40-

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Lawrence J. Raifman and McCay Vernon, "Important Implications for Psychologists of the Americans with Disabilities Act: Case in Point, the Patient

Who is Deaf," Professional Psychology: Research

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1992). Kay Robinson, "Model Plan for Implementation of Title I of the Americans with Disabilities Act of

1990 From the Human Resources Perspective," Cornell University, School of Industrial Relations and the National Institute on Disability and Rehabilitation Research, 1993.

Paula N. Rubin, "The Americans with Disabilities Act and Criminal Justice: Hiring New Employees," National Institute of Justice Research in Action

(Washington: DC: U.S. Department of Justice, October 1994). Paula N. Rubin, "The Americans with Disabilities Act

and Criminal Justice: An Overview," National Institute of Justice Research in Action (Washington: DC: U.S. Department of Justice, September 1993). Paula N. Rubin, "Civil Rights and Criminal Justice: Employment Discrimination Overview," National

Institute of Justice Research in Action

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with Disabilities Act: Emergency Response Systems and Telecommunication Devices for the

Deaf," National Institute of Justice Research in Action (Washington, DC: U.S. Department of Justice,

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(March 1992), pp. 10-12.

Jamie Satcher, "Improving Quality of Work Life for Persons with Learning Disabilities: ADA Rights and Responsibilities," Journal of Applied Rehabilitation Counseling, vol. 24, no. 1 (Spring 1993), pp. 16-18.

Dayl L. Scherich, "Job Accommodations in the Work- place for Persons Who are Deaf or Hard of Hearing: Current Practices and Recommendations,"

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Comprehensive System? A Historical Perspective on Federal Disability Policy," Journal of Disability Policy Studies, vol. 1, no. 3 (Fall 1990), pp. 1-18. Richard K. Scotch and Kay Schriner, "Disability as Human Variation: Implications for Policy," The Annals of the American Academy (January 1997), pp. 148-172. James D. Slack, "Workplace Preparedness and the Americans with Disabilities Act: Lessons from

Municipal Governments' Management of

HIV/AIDS," Public Administration Review, vol. 56,

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(1996), pp. 44-53. Theodore J. Stein, "Disability-Based Employment Discrimination Against Individuals Perceived to Have AIDS and Individuals Infected with HIV or

Diagnosed with AIDS: Federal and New York Statutes and Case Law," AIDS & Public Policy

Journal, vol. 10, no. 3 (Fall 1995), pp. 123-139. Arthur P. Thompson and Wesley Ridlon, "How ADA

Requirements Affect Small Jail Design," Corrections Today (April 1995). Beatriz Trevino and Edna Mora Szymanski, "Career Development of Hispanics: A Qualitative Study of

the Career Development of Hispanics with Dis- abilities," Journal of Rehabilitation (July/Aug- ust/September 1996), pp. 5-13. Bonnie Poitras Tucker, "The ADA and Deaf Culture:

Contrasting Precepts, Conflicting Results," The Annals of the American Academy (January 1997), pp. 24-36.

Vera Tweed, "Transition to Success," Rehab Manage- ment: The Interdisciplinary Journal of Rehabilitation, vol. 7, no. 4 (June/July 1994), p. 7.

Darlene Van Sickle, "Avoiding Lawsuits: A Summary

of ADA Provisions and Remedies," Corrections Today (April 1995).

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and Without Disabilities in an Age of Insecurity," The Annals of the American Academy (January

1997), pp. 117-128.

Edward H. Yelin and Patricia P. Katz, "Labor Force

Trends of Persons With and Without Disabilities,"

Monthly Labor Review, vol. 117, no. 10 (October 1994), p. 36. Richard A. Zappile and Debbie Jankowski, "The

Philadelphia Police Department's Response to the Americans with Disabilities Act," The Police Chief

(March 1993), pp. 51-54.

Michele A. Zavos, "Federal ADA Protections for People with HIV," Trial (December 1994), pp. 58-60.

G.E. Zuriff, "Medicalizing Character," The Public Interest (Spring 1996), pp. 94-99.

Law Review Articles

Authors Named

Patricia M. Bailey, Note, "Significant Risk" Concept Justifies Practice Restrictions of an HIV-Infected

Surgeon: Scoles V. Mercy Health Corp., 40 VILL. L.

REV. 687 (1995).

Carol J. Banta, Note, The Impact of the Americans with Disabilities Act on State Bar Examiners' Inquiries Into the Psychological History of Bar Appli- cants, 94 Mich. L. Rev. 167 (October 1995).

Anne E. Beaumont, Note, This Estoppel Has Got to Stop: Judicial Estoppel and the Americans with

Disabilities Act, 71 N.Y.U.L. REV. 1529 (1996).

Peter David Blanck, Symposium, Empirical Study of

the Employment Provisions of the Americans with Disabilities Act: Methods, Preliminary Findings,

and Implications, 22 N.M. L. REV. 119 (1992). Peter David Blanck, Symposium: Individual Rights and Reasonable Accommodations Under the

Americans with Disabilities Act: The Economics of

the Americans with Disabilities Act: Part I

Workplace Accommodations, 46 DEPAUL L. REV. 877 (Summer, 1997). Suzanne M. Bruyere, Susana Gomez, and Gwen Thayer Handelmann, The Reasonable Accomtno154

1 G 3
dation Process in Unionized Environments, LAB.

L.J. 629 (October 1996).

Kathlynn L. Butler, Securing Employee Health Benefits Through ERISA and the ADA, 42 EMORY L.J.

1197 (Fall 1993).

Keith Alan Byers, No One is Above the Law When It Comes to the ADA and the Rehabilitation Act-Not

Even Federal, State, or Local Law Enforcement

Agencies, 30 LOY. L.A. L. REV. 977 (April 1997). Stephen Cormac Carlin and Christopher M. Fairman,

Squeeze Play: Workers' Compensation and the Professional Athlete, 12U. MIAMI ENT. & SPORTS L.

REV. 95 (Fall 1994/Spring 1995). John Chwat, Symposium, The ADA and Its Effects on American Industries, Civil Rights for the Next Millennium: Evolution of Employment Discrimination Under the Americans with Disabilities Act, 10 ST.

JOHNS' J.L. COMM 613 (Summer 1995). Catherine C. Cobb, Comment, Challenging a State Bar's Mental Health Inquiries Under the ADA, 32

HODS. L. REV. 1384 (Winter 1996).

John J. Coleman, II and Marcel L. DeBruge, A Practitioner's Introduction to ADA Title II, 45 ALA. L.

REV. 55 (Fall 1993). Phyllis Coleman and Ronald A. Shellow, Ask About Conduct, Not Mental Illness: A Proposal For Bar Examiners and Medical Boards to Comply with the

ADA and Constitution, 20 J. LEGIS. 147 (1994).

Phyllis Coleman and Ronald A. Shellow, Restricting Medical Licenses Based on Illness Is Wrong - Re- porting Makes It Worse, 9 J.L & HEALTH 273

(1994/1995). Julie Davies, Federal Civil Rights Practice in the 1990's: The Dichotomy Between Reality and Theory, 48 HASTINGS L.J. (January 1997). Gregory M.P. Davis, Comment, More than a Supervi- sor Bargains For: Individual Liability Under the Americans with Disabilities Act and Other Employment Discrimination Statutes, 1997 WIS. L.

REV. 321 (1997).

Amanda G. Dealy, Note, Compulsory Arbitration in

the Unionized Workplace: Reconciling Gilmer, Gardner-Denver and the Americans with Disabilities Act 37 V.C. L. REV. 479 (May 1996). Jack P. DeSario, To Provide Medical Care to Persons

with HIV/AIDS: The Americans with Disabilities

Act and Refusals, 27 J. MARSHALL L. REV. 347

(Winter 1994).

John J Donohue III, Advocacy Versus Analysis in Assessing Employment Discrimination Law, 44 STAN.

L. REV. 1583 (July 1992). Marc E. Elovitz, Combating AIDS Discrimination in Health Insurance, 10 ST. JOHN'S J.L. COMM 537

(Summer 1995).

Janet Eriv, Persistent Misconceptions: A Response to Robert Hammel, 23 FORDHAM URB. L.J. 1219

(Summer 1996). H. Miriam Farber, Note, Subterfuge: Do Coverage Limitations and Exclusions in Employer-Provided Health Care Plans Violate the Americans with Disabilities Act?, 69 N.Y.U. L. REV. 850

(October/November 1994). Jeffrey P. Ferrier, ADA and ADR: Approaching an

Adequate Adjudicatory Allocation, 45 CATHOLIC U.

L. REV. 1281 (1996).

Robert B. Fitzpatrick, Recent Developments in Em- ployment Law, 32 TORT & INS. L.J. 339 (Winter

1997).

John L. Flynn, Note, Mixed-Motive Causation under

the ADA: Linked Statutes, Fuzzy Thinking, and Clear Statements, 83 GEO. L.J. 2009 (June 1995).

James G. Frierson, Heads You Lose, Tails You Lose: A

Disturbing Judicial Trend in Defining Disability,

43 LAB. L.J. 419 (July 1997). Elaine Gardner, The Legal Rights of Inmates with

Physical Disabilities, 14 ST. LOUIS U. PUB. L. REV.

175 (1994). James V. Garvey, Health Care Rationing and the Americans with Disabilities Act of 1990: What Protection Should the Disabled Be Afforded, 68 NOTRE

DAME L. REV. 1 (1993) at 4.

Andrew K. Glenn, Note, Disclosure of Executive Ill- nesses Under Federal Securities Law and the

Americans with Disabilities Act of 1990: Hobson's

Choice or Business necessity? 16 Cardozo 1. Rev.

537 (December 1994).

Janet E. Goldberg, Employees with Mental and Emotional Problems Workplace Security and Implications of State Discrimination Law, the Americans

with Disabilities Act, the Rehabilitation Act, Workers' Compensation, and Related Issues, 24 STETSON

L. REV. 201 (Fall 1994).

David Harger, Comment, Drawing the Line Between Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act: Reducing the Effects of Ambiguity on Small Businesses,

41 KAN. L. REV. 783 (Summer 1993).

Tracy L. Hart, Note, The Americans with Disabilities Act Title I: Equal Employment Rights for Disabled

Americans, 18 U. DAYTON L. REV. 921 (1993). Amy L. Hennen, Protecting Addicts in the Employ- ment Arena: Charting a Course Toward Tolerance,

15 LAW & INEQ. J. 157 (Winter 1997).

Rhonda K. Jenkins, Note, Square Pegs, Round Holes: HIV and the Americans with Disabilities Act, Doe

v. Kohn Nast & Graf. P.C. 862 F. Supp 1310 (E.D.

Pa. 1994), 20 S. ILL. U. L. J. 637 (Spring 1996). Christopher Aaron Jones, Legislative "Subterfuge"?: Failing to Insure Persons with Mental Illness Un- der the Mental Health Parity Act and the Ameri- cans with Disabilities Act, 50 VAND. L. REV. 753

(April 1997). Pamela S. Karlan and George Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 DUKE L.J. 1 (1996).

Lianne C. Knych, Note, Assessing the Application of McDonnell Douglas to Employment Discrimination Claims Brought Under the Americans with Disabilities Act, 79 MINN. L. REV. 151 (1995).

Candace Saari Kovacic-Fleischer, United States- v.

Virginia's New Gender Equal Protection Analysis with Ramifications for Pregnancy, Parenting, and

Title VII, 50 VAND. L. REV. 845 (May 1997). Lisa Lavelle, Note, The Duty to Accommodate: Will Title I of the Americans with ADA Emancipate In- dividuals with Disabilities Only to Disable Small

Businesses?, 66 NOTRE DAME L. REV. 1135 (1991).

Gloria Y. Lee, Wiping the Slate Clean: Expunging Re- cords of Disability-Caused Misconduct as a Reasonable Accommodation of the Alcoholic Employee Under the ADA, 81 MINN. L. REV. 1641 (June

1997).

155

164
Steven S. Locke, The Incredible Shrinking Protected

Class: Redefining the Scope of Disability Under the Americans with Disabilities Act, 68 U. COLO. L. REV. 107(1997). William J. McDevitt, Seniority Systems and the Americans with Disabilities Act: The Fate of

"Reasonable Accommodation" After Eckles, 9 ST. THOMAS L. REV. 359 (Winter, 1997).

John D. McKenna, Note, Is the Mental Health History

of an Applicant a Legitimate Concern of State Pro- fessional Licensing Boards? The Americans with Disabilities Act vs. State Professional Licensing Boards, 12 HOFSTRA L. REV. 335 (Spring 1995). Michael K. McKinney, The Impact of the Americans with Disabilities Act on the Bar Examination Process: The Applicability of Title II and Title III to the

Learning Disabled, 26 CuMB. L. REV. 669 (1996). Patrick J. Morgan, Comment, Applicability of ADA

Non-discrimination Principles to Self-Insured

Health Plans: Do "AIDS Caps" Violate the Law?,

11 J. CONTEMP H. L. & POL'Y 221 (Fall 1994). Ellyn Moscowitz, Outside The "Compensation Bar- gain: " Protecting The Rights Of Workers Disabled On The Job To File Suits For Disability Discrimi- nation, 27 SANTA CLARA L. REV. 587 (1997).

Rosalie K. Murphy, Note, Reasonable Accommodation

and Employment Discrimination Under Title I of

the Americans with Disabilities Act, 64 S. CAL. L. REV. 1607 (1991).

Thomas P. Murphy, Disabilities Discrimination Under

the Americans with Disabilities Act, 36 CATH. U. L. REV. 13 (1995).

Ranko Shiraki Oliver, The Impact of Title I of the Americans with Disabilities Act of 1990 on Workers' Compensation Law, 16 UALR L.J. 327 (1994). Mary K. O'Melveny, The Americans with Disabilities Act and Collective Bargaining Agreements: Rea- sonable Accommodations or Irreconcilable Conflicts?, 82 KY. L.J. 219 (1994).

David Orentlicher, Destructuring Disability: Rationing of Health Care and Unfair Discrimination Against the Sick, 31 HARV. C.R.-C.L. L. REV. 50

(1996).

Wendy E. Parnet and Daniel J. Jackson, No Longer

Disabled: The Legal Impact of the New Social Con- struction of HIV, 23 AM. J.L & MED. 7 (1997). James A. Passamano, Employee Leave Under the Americans with Disabilities Act and the Family Medical Leave Act, 38 S. TEX. L. REV. 861 (July

1997).

David J. Popiel, The Debate Over the Americans with Disabilities Act: A Question of Economics or Justice?, 10 ST. JOHN'S J.L. Comm. 527 (1995). Danielle Priola, Disability Law-Burden Of Proof An Individual Challenging The Capacity Of A De- velopmentally-Disabled Person To Make An Inde- pendent Decision Bears The Burden Of Proving By

Clear And Convincing Evidence That The Disabled Person Has The Specific Incapacity To Decide-In Re M.R., 135 N.J. 155, 638 A.2d 1274 (1994), 26

SETON HALL L. REV. 407 (1995).

. Frank S. Ravitch, Beyond Reasonable Accommodation: The Availability and Structure of a Cause of Action for Workplace Harassment Under the

Americans with Disabilities Act, 15 CARDOZO L.

REV. 1475 (May 1994).

Edward D. Re, Symposium, Remedial Legislation: Sword or Shield? Civil Rights for the Next Mille- nium: Evolution of Enzployment Discrimination Under the Americans with Disabilities Act, 10 ST. JOHNS J.L. COMM477 (Summer 1995).

Aaron J. Reber, Note, Learning and Mental Disability Protection Under the Americans with Disabilities

Act in the Quest for Certification for the Practice of

Law, 10 J.L. & Health 209 (1995/1996).

Ira P. Robbins, George Bush's America meets Dante's

Inferno: The Americans with Disabilities Act in

Prison, 15 YALE L. & POL'Y REV. 49 (1996).

W. Sherman Rogers, The ADA, Title VII, and the Bar Examination: The Nature and Extent of the ADA's

Coverage of Bar Examinations and an Analysis of

the Applicability of Title VII to Such Tests, 26 How. L.J. 2 (1993). Leonard S. Rubenstein, Symposium: Ending Dis- crimination Against Mental Health Treatment in Publicly Financed Health Care, 40 ST. LOUIS L.J.

1-40 (1996).

James P. Sadler, Comment, The Alcoholic and the

Americans with Disabilities Act of 1990: "The

Booze made Me Do It" Argument Finds Little Rec- ognition in Employment Discrimination Actions,

28 TEX. TECH. L. REV. 861 (1997).

Stacy E. Seicshnaydre, Comment: Community Mental Health Treatment for the Mentally Ill-When Does Less Restrictive Treatment Become a Right, 66 Tn.. L. REV. (1992).

Sarah O'Neill Sparboe, Comment, Must Bar Examin- ers Accommodate the Disabled in the Administration of Bar Exams?, 30 WAKE FOREST L. REV. 391

(1995).

Janet M. Spencer, Symposium, Civil Rights for the Next Millennium: Evolution of Employment Dis- crimination Under the Americans with Disabilities

Act: Clearing the Docket-Alternative Dispute Resolution under the Americans with Disabilities

Act, 10 ST. JOHN'S J.L. COMM 589 (Summer 1995). Michael Ashley Stein, Mommy Has a Blue Wheel- chair: Recognizing the Parental Rights of Indi- viduals with Disabilities, 60 BROOKLYN L. REV. 1069 (Fall 1994).

Douglas M. Staudmeister, Comment, Grasping the

Intangible: A Guide to Assessing Nonpecuniary Damages in the EEOC Administrative Process, 46

AM. U.L. REV. 189 (October 1996).

Rebecca Newman Strandberg, Americans with Dis- abilities Act of 1990: A Compliance Overview, 36 How. L.J. 91 (1993).

Kathryn W. Tate, The Federal Employer's Duties Un- der the Rehabilitation Act: Does Reasonable Accommodation or Affirmative Action Require Reas- signment? 67 TEX. L. REV. 781, 797 (1989). Anne B. Thomas, Beyond the Rehabilitation Act of 1973: Title II of the Americans with Disabilities

Act, 22 N.M. L. Rev. 243 (1992).

Bonnie P. Tucker, Section 504 of the Rehabilitation

Act After Ten Years of Enforcement: The Past and

the Future, 1989 U. ILL. L. REV. 845 (1989). Bonnie P. Tucker, Symposium, The Americans with Disabilities Act of 1990: An Overview, 22 N.M. L. REV. 13 (1992).

Mark C. Weber, Disability Discrimination by State

and Local Government: The Relationship Between

Section 504 of the Rehabilitation Act and Title II of

156

165
the Americans with Disabilities Act, WM. AND

MARY L REV. 1089 (Winter 1995).

James J. Weisman, Dignity and Non-Discrimination:

The Requirement of "Reasonable Accommodation"

in Disability Law, 23 FORHAM URB. L.J. 1235

(Summer 1996). Wendy Wilkinson, Judicially Crafted Barriers to

Bringing Suit Under the Americans with Disabilities Act, 38 S. TEX. L. REV. 907 (July 1990).

Christopher J. Willis, Comment, Title I of the Ameri- cans with Disabilities Act: Disabling the Disabled,

25 CLIMB. L. REV. 715 (1994).

Matthew Graham Zagrodzky, When Employees Be- come Disabled: Does the Americans with Disabilities Act Require Consideration of a Transfer as a Reasonable Accommodation? 38 SOUTH TEX. L.

REV. 939 (1997).

Authors Not Named

Symposium, Civil Rights for the Next Millennium: Evolution of Employment Discrimination Under

the Americans with Disabilities ActSpeakers: Keynote Address: The Interaction of the Americans

with Disabilities Act and Alternative Dispute Resolution within the EEOC, 10 ST. JOHN'S J.L. Comm.

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Regulations

Equal Employment Advisory Council, "Equal Em- ployment Opportunity Commission, Notice of Pro- posed Rulemaking, Equal Employment Opportu- nity for Individuals with Disabilities, 29 C.F.R. Part 1630," Apr. 23, 1991. U.S. Equal Employment Opportunity Commission, "Equal Employment Opportunity for Individuals with Disabilities," Final Rule, July 26, 1991, 56

Fed. Reg. 35726 (1991). 29 C.F.R. Part 1630 (1996). [EEOC's Title I Regulation] U.S. Equal Employment Opportunity Commission

and U.S. Department of Labor, "Procedures for Complaints/Charges of Employment Discrimination Based on Disability Filed Against Employers Holding Government Subcontracts," Joint Final Rule, Jan. 24, 1992, 57 Fed. Reg. 2960 (1992). [EEOC's Regulations at 29 C.F.R. Part 1641]. U.S. Equal Employment Opportunity Commission

and U.S. Department of Justice, "Procedures for Coordinating the Investigation of Complaints or Charges of Employment Discrimination Based on Disability Subject to the Americans with Disabilities Act and Section 504 of the Rehabilitation Act

of 1973," Final Rule, Aug. 4, 1994, 59 Fed. Reg. 39898 (1994). [EEOC's Regulations at 29 C.F.R.

1640].

Annual Reports

U.S. Equal Employment Opportunity Commission, Annual Report 1993. U.S. Equal Employment Opportunity Commission, Fiscal Year 1989 Annual Report. U.S. Equal Employment Opportunity Commission, Fiscal Year 1990 Annual Report. U.S. Equal Employment Opportunity Commission, Fiscal Years 1991 and 1992: Combined Annual

Report. U.S. Equal Employment Opportunity Commission, Fiscal Year 1994 Annual Report. U.S. Equal Employment Opportunity Commission, Office of Legal Counsel, FY 1996 Annual Report. U.S. Equal Employment Opportunity Commission, Office of Program Operations, FY 1995 Annual

Report. Ellen J. Vargyas, Legal Counsel, U.S. Equal Employ- ment Opportunity Commission, memorandum to Claire Gonzales, Director, Office of Communications and Legislative Affairs, "FY 1995 Annual Report Submission," Feb. 7, 1996 and attachment.

Policy and Enforcement Guidance

U.S. Equal Employment Opportunity Commission, "ADA Enforcement Guidance: Preemployment Disability-Related Questions and Medical Exami- nations" (undated). U.S. Equal Employment Opportunity Commission, "Americans with Disabilities Act Enforcement

Guidance: Pre-employment Disability-Related Questions and Medical Examinations," Oct. 10,

1995.

U.S. Equal Employment Opportunity Commission, "EEOC Enforcement Guidance on the Americans

157

166
with Disabilities Act and Psychiatric Disabilities,"

(EEOC Notice 915.002), Mar. 25, 1997. U.S. Equal Employment Opportunity Commission, "EEOC Enforcement Guidance on the Effect of

Representations Made in Applications for Benefits on the Determination of Whether a Person Is a

'Qualified Individual with a Disability' Under the Americans with Disabilities Act of 1990 (ADA),"

(EEOC Notice 915.002), Feb. 12, 1997. U.S. Equal Employment Opportunity Commission, "EEOC Enforcement Guidance: Workers' Compen- sation and the Americans with Disabilities Act,"

(EEOC Notice 915.002), Sept. 3, 1996. U.S. Equal Employment Opportunity Commission, "Enforcement Guidance on Application of Tile VII and the Americans with Disabilities Act to Conduct Overseas and to Foreign Employers Dis- criminating in the United States," (EEOC Notice 915.002), Oct. 20, 1993.

U.S. Equal Employment Opportunity Commission, "Enforcement Guidance on Non-Waivable Employee Rights Under U.S. Equal Employment Op- portunity Commission (EEOC) Enforced Statutes,"

(EEOC Notice 915.002), Mar. 10, 1997.

U.S. Equal Employment Opportunity Commission, "The Family and Medical Leave Act, the Ameri- cans with Disabilities Act, and Title VII of the

Civil Rights Act of 164," (undated). U.S. Equal Employment Opportunity Commission, "Interim Enforcement Guidance on the Application of the Americans with Disabilities Act of 1990

to Disability-based Distinctions in Employer Pro- vided Health Insurance" (EEOC Notice 915.002),

June 8, 1993.

U.S. Equal Employment Opportunity Commission, "Policy Guidance: Provisions of the Americans with Disabilities Act of 1990: Summary of the Act and Responsibilities of the EEOC in Enforcing the Act's Prohibitions Against Discrimination in Em- ployment on the Basis of Disability," (EEOC Notice 915-055), Aug. 14, 1990. U.S. Equal Employment Opportunity Commission, "Section 902Definition of the Term 'Disability'." Ellen J. Vargyas, Legal Counsel, U.S. Equal Employ- ment Opportunity Commission, letter to Barry Kearney, Associate General Counsel, National La- bor Relations Board, re Memorandum of Understanding Between the Equal Employment Opportunity Commission and the National Labor Relations Board, Nov. 1, 1996.

Technical Assistance, Outreach, and

Education Documents

U.S. Equal Employment Opportunity Commission, "Americans with Disabilities Act (ADA) Training

and Implementation Network: List of Partici- pants," September 1993. U.S. Equal Employment Opportunity Commission, "Facts About Disability-Related Tax Provisions," September 1996. U.S. Equal Employment Opportunity Commission,

Library Resources on the Employment of Individuals with Disabilities, 2nd ed., December 1991.

U.S. Equal Employment Opportunity Commission, "The ADA: Questions and Answers Employ- ment," Jan. 15, 1997.

U.S. Equal Employment Opportunity Commission, "The ADA: Your Employment Rights as an Indi- vidual with a Disability," Jan. 15, 1997. U.S. Equal Employment Opportunity Commission, "The ADA: Your Responsibilities as an Employer,"

Jan. 15, 1997.

U.S. Equal Employment Opportunity Commission, "Facts About the Americans with Disabilities Act,"

Jan. 15, 1997.

U.S. Equal Employment Opportunity Commission, "Questions and Answers about Disability and

Service Retirement Plans under the ADA," (EEOC

Notice 915.002), May 11, 1995. U.S. Equal Employment Opportunity Commission, A

Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act, (EEOCM-1A), January 1992. U.S. Equal Employment Opportunity Commission, A

Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act: Resource Directory, (EEOCM-1B), January 1992. U.S. Equal Employment Opportunity Commission, 1995 Training Conference EEOCFEPA: Partners

for the 90's.

U.S. Equal Employment Opportunity Commission

and U.S. Department of Justice, Civil Rights Divi- sion, "Americans with Disabilities Act: Questions

and Answers," (undated brochure).

Budget Documents

Budget of the United States 1997, Equal Employment Budget of the United States

1996, Equal Employment Budget of the United States

1995, Equal Employment Budget of the United States

1994, Equal Employment Budget of the United States 1993, Equal Employment Budget of the United States 1992, Equal Employment Budget of the United States 1991, Equal Employment Budget of the United States 1990, Equal Employment

Government, Fiscal Year

Opportunity Commission. Government, Fiscal Year

Opportunity Commission.

Government, Fiscal Year

Opportunity Commission. Government, Fiscal Year

Opportunity Commission. Government, Fiscal Year

Opportunity Commission.

Government, Fiscal Year

Opportunity Commission.

Government, Fiscal Year

Opportunity Commission.

Government, Fiscal Year

Opportunity Commission.

Training Documents

U.S. Equal Employment Opportunity Commission, "Headquarters ADA Training for Supervisors and Managers," Sept. 11 & 13, 1990. U.S. Equal Employment Opportunity Commission, "Priority Charge Handling Training: Participants' Manual," November 1995.

Task Force Reports

U.S. Equal Employment Opportunity Commission, Charge Processing Task Force Report, December 1994March 1995.

U.S. Equal Employment Opportunity Commission, EEOC's State and Local Program Relationship with Fair Employment Practice Agencies: EEOC / FEPA Task Force Report to Chairman Gil- bert F. Casellas, Mar. 15, 1995.

158

167
U.S. Equal Employment Opportunity Commission, Priority Charge Handling Task Force, Litigation Task Force Report, March 1998. U.S. Equal Employment Opportunity Commission, Task Force on Alternative Dispute Resolution: Re- port to Chairman Gilbert F. Case llas, March 1995. U.S. Equal Employment Opportunity Commission, Task Force Report on 'Best' Equal Employment Opportunity Policies, Programs, and Practices in

the Private Sector, December 1997.

U.S. Equal Employment Opportunity Cominission, Task Force Report on 'Best' Equal Employment Opportunity Policies, Programs, and Practices in

the Private Sector, February 1998.

Other

Evan J. Kemp, Jr., Chairman, U.S. Equal Employ- ment Opportunity Commission, testimony before

the Subcommittee on Employment Opportunities,

U.S. House of Representatives, Oct. 30, 1991. Clare Gallagher, memorandum to Chris Bell et al., "ADA Hill Briefings Handout Materials," and attachments, Apr. 2, 1992. J. Kenneth L. Morse, Litigation Management Services, Office of General Counsel, U.S. Equal Em- ployment Opportunity Commission, memorandum

on "Updated List of EEOC ADA Cases," Nov. 9,

1994.

U.S. Equal Employment Opportunity Commission, Americans with Disabilities Act (ADA) Training

and Implementation Network: List of Participants,

September 1993. U.S. Equal Employment Opportunity Commission, The Digest of Equal Employment Opportunity

Law, vol. 10, no. 6 (April 1997). U.S. Equal Employment Opportunity Commission, "Directives Transmittal: Organization, Mission

and Functions," (EEOC Notice 110.002), May 11,

1997.

U.S. Equal Employment Opportunity Commission, "Docket of Americans with Disabilities Act (ADA)

Litigation," Mar. 31, 1997. U.S. Equal Employment Opportunity Commission, EEOC Compliance Manual for the Americans with Disabilities Act (EEOC Notice 915.002), Mar. 14,

1995.

U.S. Equal Employment Opportunity Commission, "EEOC's Implementation of Title I of the Americans with Disabilities Act of 1990," January 1993. U.S. Equal Employment Opportunity Commission,"

Investigative Procedures Manual, vol. 1, October

1987.

U.S. Equal Employment Opportunity Commission, "National Enforcement Plan," February 1996. U.S. Equal Employment Opportunity Commission, "Priority Charge Handling Procedures," June

1995.

U.S. Equal Employment Opportunity Commission, "Substantial Weight Review ProceduresEEOC

Order 916

Appendix A, August 1979." U.S. Equal Employment Opportunity Commission, "Strategic Plan: 1997-2002," OMB Review Copy,

Aug. 18, 1997. U.S. Equal Employment Opportunity Commission, Office of Program Operations, Technical Assistance and Education in EEOC: The Role of the OfTice of Program Operations, Report to the Commission, Jan. 10, 1995. U.S. Equal Employment Opportunity Commission Enforcement and Litigation-8/4/97 U.S. Equal Employment Opportunity Commission Technical Assistance and Training Programs8/4/97

U.S. Equal Employment Opportunity Commission, "Overview of the Americans with Disabilities Act's

Employment-Related Requirements." U.S. Equal Employment Opportunity Commission

and U.S. Department of Justice, Americans with Disabilities Act Handbook.

EEOC Responses to OCRE Information Request

EEOC, Response to Preliminary Information Request

(9/5/97)

EEOC, Response to Preliminary Information Request

(2/10/98)

EEOC, Response to Preliminary Information Request

(3/6/98)

U.S. Department of Justice Documents

Regulations

Architectural and Transportation Barriers Compli- ance Board, "Americans with Disabilities Act

(ADA) Accessibility Guidelines for Buildings and Facilities, State and Local Government Facilities" Final Rule, Jan. 13, 1998, 63 Fed. Reg. 2000

(1998) (36 C.F.R. Part 1191).

U.S. Department of Justice, "Nondiscrimination on

the Basis of Disability in State and Local Govern- ment Services," Final Rule, July 26, 1991, 56 Fed.

Reg. 35694 (1991). 28 C.F.R. Part 35 (1996). [DOJ's Title II Regulations] 28 C.F.R. Part 36 (1994), U.S. Department of Justice, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities." [DOJ's Title II Regulations] U.S. Department of Justice, "New or Proposed Americans with Disabilities Act Regulations."

Technical Assistance, Outreach, and

Education Documents

Police Executive Research Forum, "Police Contact

with People Who Have Hearing and Speech Dis- abilities: Trainers Guide," prepared under a grant from the U.S. Department of Justice, Apr. 4, 1996. Police Executive Research Forum, The Police Response to People with Mental Illnesses: Including

Information on the Americans with Disabilities Act

Requirements and Community Policing Ap- proaches, prepared under a grant from the U.S. Department of Justice (Washington, DC: Police Executive Research Forum, 1997).

Police Executive Research Forum, "Recognizing and Responding to People Who Have Mental Retardation: Trainers Guide," prepared under a grant from the U.S. Department of Justice, Aug. 11,

1997.

Police Executive Research Forum and Epilepsy Foun- dation of America, The Police Response to People with Seizures & Epilepsy: A Curriculum Guide for Law Enforcement Trainers, prepared under a grant from the U.S. Department of Justice

(Washington, DC: Police Executive Research Fo159

168
rum and Epilepsy Foundation of America, February 1993). U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "Accessible Stadiums,"

(undated). U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "ADA Design Guide: Restriping Parking Lots," (undated). U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "ADA Information from

the Department of Justice," June 26, 1997. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "ADA Information

Services," revised August 1997. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "ADA Materials in Spanish and Other Languages," undated. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "ADA Outreach and Service to Minority and Rural Communities," undated.

U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "ADA Technical Assistance Program," attachment A, undated. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, The Americans with Disabilities Act: ADA Guide for Sinall Businesses,

May 1997. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, Certification of State and local Building Codes (ADA Web site10/27/97). U.S. Department of Justice, Civil Rights Division, Disability Rights Section, ADA Settlements and Consent Agreements (ADA website-10/27/97). U.S. Department of Justice, Civil Rights Division, Disability Rights Section, The Americans with Disabilities Act: Technical Assistance Program

Grant Application Package, (undated). U.S. Department of Justice, Civil Rights Division, Disability Rights Section, The Americans with Disabilities Act: Title II Technical Assistance

Manual Covering State and Local Government Programs and Services, November 1993. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, ADA Training Man- ualSteps in a Title II or Title III Investigation

(undated). U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "Common ADA Errors and Omissions in New Construction and Alterations," June 1997.

Accessible Route. (ADA Accessibility Guidelines

(ADAAG 4.3) Tech Sheet Series, Barrier Free En- vironments, Inc. (under grant from the National Institute on Disability and Rehabilitation Research (NIDRR)) 1994.

Areas of Rescue Assistance (ADA Accessibility Guidelines (ADAAG. 4.3.11) Tech Sheet Series, Barrier Free Environments, Inc. (under grant from the National Institute on Disability and Rehabilitation Research (NIDRR) 1994.

Toilet Stalls (ADA Accessibility Guidelines

(ADAAG.4.17)) Tech Sheet Series, Barrier Free Environments, Inc. (under grant from the National Institute on Disability and Rehabilitation

Research (NIDRR), 1994.

Checklist for Existing FacilitiesThe Americans with Disabilities ActChecklist for Readily Achievable Barrier Removal, Mar. 31, 1992.

Medical Care Facilities (ADA Accessibility Guidelines

(ADAAG.6.0), Tech Street Series, Barrier Free Environments, Inc. (under grant from the National Institute on Disability and Rehabilitation Research (NIDRR), 1994. The Americans with Disabilities Act Title IIIA

Guide for Making Your Business Accessible to People with Mental RetardationThe Arc (under a grant from DOJO, March 1994No. 30-18. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "Commonly Asked Questions About the Americans with Disabilities

Act and Law Enforcement," Sept. 12, 1996. U.S. Department of Justice, Civil Rights Division, Disability Rights, Section, "Commonly Asked Questions About Child Care Centers and the

Americans with Disabilities Act," October 1997.

U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "Commonly Asked Questions About Service Animals in Places of

Business," July 1996. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "Commonly Asked Questions About Title II of the Americans with

Disabilities Act (ADA)," November 1994. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "Commonly Asked Questions Regarding Telephone Emergency Services," December 1994. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, A Guide to Disability

Rights Laws, May 1997. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "Learn About the ADA

in Your Local Library," (undated). U.S. Department of Justice, Civil Rights Division

(under a grant to Chief Officers of State Library Agencies (COSLA) and Interhab, Inc. The Re- source Network for Kansans with Disabilities),

"Libraries and the ADA: An Annotated Listing of Documents in the 1996 ADA Information File,"

November 1996.

U.S. Department of Justice, Civil Rights Division

(under a grant to Chief Officers of State Library Agencies (COSLA) and Kansas Association of Re- habilitation Facilities) "Libraries and the ADA: A

Programming & Press Kit for the 1995 ADA Information File," November 1995.

U.S. Department of Justice, Civil Rights Division

(developed under a grant to Chief Officers of State Library Agencies and Kansas Association of Reha- bilitation Facilities), "Libraries and the ADA: A

Programming & Press Kit for the 1994 ADA Information File," July 1994. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "Questions and An- swers: The Americans with Disabilities Act and

Hiring Police Officers," Mar. 25, 1997. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "Questions and An- swers: The Americans with Disabilities Act and

Persons with HIV/AIDS," (undated). U.S. Department of Justice/Civil Rights Division, Disability Rights Section, "Technical Assistance

160

169
Program Grant Application Package, May 22, 1996.

U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "Technical Assistance Materials Produced by Department of Justice that Apply to Title II of the ADA," Attachment C, un- dated, provided in response to U.S. Commission on Civil Rights Request for Information. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "Technical Assistance Materials Produced by Department of Justice Grantees that Apply to Title II of the ADA," Attachment F, undated, provided in response to U.S. Commission on Civil Rights Request for Information.

U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "Technical Assistance Materials Produced by Other Federal Agencies or

their Grantees and Reviewed by the Department of Justice that Apply to Title II of the ADA," Attachment E, undated, provided in response to U.S. Commission on Civil Rights Request for Information.

U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "DOJ ADA Technical Assistance Program: January 1993June 1997," attachment B, undated.

U.S. Department of Justice, Civil Rights Division, Disability Rights Section, Technical Assistance Update, no. 1 (August 1996). U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "Title II Highlights,"

(undated).

U.S. Department of Justice, Civil Rights Division, Public Access Section, Americans with Disabilities

Act Title II Technical Assistance Manual 1994

Supplement, 1994. U.S. Department of Justice, Civil Rights Division, Public Access Section, "Title II Highlights"

(undated).

U.S. Department of Justice, Office of the Inspector General, Inspection Report: Americans with Dis- abilities Act Technical Assistance Grant Program, Report Number 1-94-05, November 1994. U.S. Department of Justice, Justice Management Di- vision, Equal Employment Opportunity Staff,

"1997 EEO Related Conferences and Activities."

Quarterly Reports

U.S. Department of Justice, Civil Rights Division, Enforcing the ADA: A Special Status Report from

the Department of Justice, July 26, 1995. U.S. Department of Justice, Civil Rights Division, Enforcing the ADA: A Status Report from the De- partment of Justice, April 1994. U.S. Department of Justice, Civil Rights Division, Enforcing the ADA: A Status Report from the De- partment of Justice (April-June 1994). U.S. Department of Justice, Civil Rights Division, Enforcing the ADA: A Status Report from the De- partment of Justice (July-September 1994). U.S. Department of Justice, Civil Rights Division, Enforcing the ADA: A Status Report from the De- partment of Justice (October-December 1994). U.S. Department of Justice, Civil Rights Division, Enforcing the ADA: A Status Report from the De- partment of Justice (January-March 1995).

U.S. Department of Justice, Civil Rights Division, Enforcing the ADA: A Status Report from the De- partment of Justice (April-September 1995). U.S. Department of Justice, Civil Rights Division Disability Rights Section, Enforcing the ADA: A

Status Report from the Department of Justice

(October 1995March 1996). U.S. Department of Justice, Civil Rights Division, Disability Rights Section, Enforcing the ADA. A

Status Report from the Department of Justice

(April-June 1996). U.S. Department of Justice, Civil Rights Division, Disability Rights Section, Enforcing the ADA: A

Status Report from the Department of Justice

(July-September 1996). U.S. Department of Justice, Civil Rights Division, Disability Rights Section, Enforcing the ADA: A

Status Report from the Department of Justice

(October-December 1996). U.S. Department of Justice, Civil Rights Division, Disability Rights Section Enforcing the ADA: A

Status Report from the Department of Justice

(January-March 1997). U.S. Department of Justice, Civil Rights Division, Disability Rights Section Enforcing the ADA: A

Status Report from the Department of Justice

(April-June 1997). . U.S. Department of Justice, Civil Rights Division, Public Access Section, Enforcing the ADA: A

Status Report from the Department of Justice, April 4, 1994.

Other

Douglas W. Kmiec, Acting Assistant Attorney Gen- eral, Office of Legal Counsel, U.S. Department of Justice, memorandum to Arthur B. Culvahouse,

Jr., Counsel to the President, "Application of Section 504 of the Rehabilitation Act to HIV-Infected

Individuals," Sept. 17, 1988. Steven Boone, "Libraries and the Americans with Disability Act: Year Two Evaluation Report,"

(undated).

U.S. Department of Justice, "ADA Mediation Pro- gram," Feb. 19, 1997.

U.S. Department of Justice, "State Listing of Centers

for Independent Living and ADA Resources." U.S. Department of Justice, "Strategic Plan: 1997- 2002," August 1997.

U.S. Department of Justice, Civil Rights Division Activities and Programs, June 1995 edition. U.S. Department of Justice, Civil Rights Division, Disability Rights Section, "Title II of the Ameri- cans with Disabilities Act / Section 504 of the Rehabilitation Act of 1973 Discrimination Complaint Form," (undated).

Training Seminar given by J&H March & McLennan

re: Insurance Planning for Lawyers. The Access Board (also known as U.S. Architectural

and Transportation Barriers Compliance Board's) Update on their Accomplishments (undated).

DOJ Responses to OCRE Information Requests

Preliminary Information Request for DOJ/CRD/DRS:

Complaint ProcessingResponseto Question No. 1 Preliminary Information Request for the DOJ/CRD

Response to Question No. 1

161

170
Preliminary Information Request for the

DOJ/CRD/DRSMission, Function, Responsibilities, Planning, Organization, Staffing and Budget

Response to Request for Documents No. 4 Preliminary Information Request for DOJ/CRD

Response to Request for Documents No. 1 Preliminary Information Request for DOJ/CRD

Response to Question No. 1

Statutes

Pub. L. No. 101-336, 104 Stat. 327 (codified at 42

U.S.C. §§ 12,101-12,213 (1994)). [Americans with

Disabilities Act of 1990]

Public Law 102-140, October 28, 1991, Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1992 Public Law 102-395October 6, 1992, Departments of Commerce, Justice, and State, the Judiciary,

and Related Agencies Appropriations Act 1993 Public Law 101-162November 21, 1989, Depart- ments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act

1990

Public Law 102-166, 101 Stat. 1071 (codified at 42

USC 1981 (November 21, 1991))[Civil Rights Act

of 1991]

ADA Court Cases and Amicus Curiae Briefs

Brief for the Petitioner, Randon Bragdon v. Sidney Abbott, 107 F3rd 934 (1st Cir. 1997), cert. granted,

Nov. 26, 1997.

DOJ Amicus Curiae Brief , Williams et al., v. Wasserman et al., USDC D. MD. , C.A. #CCB-94-880, 91-

2564 & 94-1107, filed April 1996Memorandum of

the United States in Support of Plaintiffs' Motion

for Partial Summary Judgment Claim and In Op- position to Defendants' Motion for Summary Judg- ment, or In the Alternative Motion for Partial

Summary Judgment (Integrated Setting) DOJ Amicus Curiae Brief, Ricky Wyatt, et al.. v. Diane. Martin, et al., USDC M. ALA, Northern Divi- sion, C.A. #3196N, filed February 1995United States' Response to Defendants' Motion for Judg- ment on the Pleadings and Plaintiffs' Motion for Summary Judgment on Plaintiffs' Claims Under

ADA of 1990 (Integrated setting) DOJ Amicus Curiae Brief, Lakes Region Consumer Advisory Board (Cornerbridge) v. City of Laconia, NH, USDC D. NH, C.A. #93-338M, Supplemental Memorandum of the United States as Amicus

CuriaeRe: If Title II of the ADA and Section 504

of the Rehabilitation Act of 1973 apply to zoning

enforcement activities.

Lakes Region Consumer Advisory Board (Cornerbridge) v. City of Laconia, NH, USDC D. NH, C. A. # 93- 338M Memorandum of the United States As Amicus Curiae.(Re: Zoning)

Innovative Health Systems, Inc. , Martin A., Maria B.

et al. V. The City of White Plains, S.J., USDC S.D. NY, Memorandum Decision and Order issued

June 12, 1996, C.A. # 95 CIV 9642 (BDP)

Innovative Health Systems, Inc., Martin A., Maria B.

et al. V. City of White Plains, USDC S.D. NY, C.A. #95 CIV 9642 (BDP), Memorandum of Law of the

Untied States Amicus Curiae in Support of Plaintiffs' Motion for a Preliminary Injunction and in

Opposition to Defendants' Motion to Dismiss the

Complaint DOJ Amicus Curiae Brief, Innovative Health Systems, Inc., Martin A., Maria B., et al. v. The City

of White Plains, NY, et al., (4th Cir. ), Docket No.

#96-7797, Brief for the United States of America

as Amicus Curiae filed Nov. 8, 1996.

Frederick Arthur Shotz, v. the County of Palm Beach, Florida, et al., USDC S.D. FLA., C.A. #98-8182,

Complaint, Class Action filed Mar. 24, 1998. EEOC Amicus Curiae Brief, Robert W. Smith v. Midland Brake, Inc., (10th Cir.), Docket No. # 96-3018,

Brief of the Equal Employment Opportunity Com- mission as Amicus Curiae in Support of the Plaintiff-Appellant's Petition for Rehearing and Suggestion for Rehearing En Banc filed Mar. 26, 1998. Robert P. Burch v. COCACOLA, Co., 119 F.3d 305

(5th Cir. 1997), Cert. Denied Jan. 20, 1998.

Glen Arnold v. United Parcel Service, Inc.., 136 F.3d.

854; (1st Cir. 1998), Judgment of District Court Reversed and Remanded, Feb. 20, 1998.

Joseph R. Matczak v. Frankford Candy and Chocolate Company, 133 F.3d 910 (3rd Cir. 1997). Affirmed

the grant of summary judgment to Matczk's claims of negligent and intentional infliction of emotional distress. Reversed the grant of sum- mary judgment as to the ADA claims. Remanded

to the District Court for further proceedings. William Runnebaum v. NationsBank of Maryland, 123 F.3d 156 (4th Cir. 1997). Affirmed USDC D.

MD decision.

Whitman-Walker Clinical Legal Services Department,

EEOC, Amici Curiae.

Congressional Senate Bill 2345-100th Cong. 2d Sess. Senate HearingsCommerce, Justice, State, the Ju- diciary and Related Agencies Appropriations, Fiscal Year 1984

98th Congress, First Session, H.R. 3222/ S. 1721. Senate HearingsCommerce, Justice, State, the Ju- diciary and Related Agencies Appropriations, Fiscal Year 1987

99th Congress, Second SessionH.R. 5161. Senate Hearings,Commerce, Justice, State, the Judiciary and Related Agencies Appropriations, Fiscal Year 1988

100th Congress, First Session. Proceedings and DebatesAmericans with Disabilities Act, 135 Cong. Rec. S-933, 9/7/89. H.R. 4498-100th Congress, Second Session, Apr. 29,

1988

H.R. 3433-105th Congress, Second Session, May 18,

1998

H.R. 2273-101st Congress -1st. Sessl. S. 1858-105th CongressSecond Session, Mar. 30,

1998.

Proceedings and DebatesAmericans with Disabilities Act, 136 Cong. Rec. H.R. 2273-5/17,22, 1990. S. 933 and H.R. 2273-101st Congress, Conference Negotiations-5/24, 6/6. 7/11-13, 1990. Selected Executive StatementsS. 933, H.R. 2273

Affirmative Action, Preferences, and the Equal Em- ployment Opportunity Act of 1995, Hearing of the Comm. On Labor and Human Resources, U.S.

Senate, 104th Cong., 2nd Sess. (Apr. 30, 1996).

162

1 7:1
Americans with Disabilities Act of 1990, H.R. REP. NO.

101-485, pt. 3 (May 15, 1990). Developmental Disabilities Assistance and Bill of Rights Act Amendments of 1993, S. REP. 103-120

(Aug. 3, 1993).

Hearing on Equal Employment Opportunity Commis- sion (EEOC) Administrative Reforms/Case Proc- essing: Hearing Before the Subcomm. On Em- ployer-Employee Relations of the House Comm. On Economic and Educational Opportunities on S. 1085, 104th Cong. (1995). Serial No. 104-20, Hearing before the House Subcommittee on Employer-Employee Relations of the Committee on Economic Educational Opportunities re: Equal Employment Opportunity Commis- sion (EEOC) Administrative Reforms/Case Proc- essing, 104th Congress, First Session, May 23, 1995.

Report 105-95, Individuals with Disabilities Education Act Amendments of 1997, Report of the House Committee on Education and the Workforce on

H.R. 5-105th Congress, First Session, May 13, 1997.

Report 105-207 to accompany H.R. 2267, House Committee on Appropriations, Committee on the Departments of Commerce, Justice, and State, the

Judiciary and related Agencies Appropriations Bill, Fiscal Year 1998, 105th Congress, First Ses- sion, July 25, 1997.

Report 103-875, Report on Legislative Review Activity during the 103d Congress of the House Com- mittee on Ways and Means, 103d Congress, Sec- ond Session, December 20. 1994.

Report 101-485 Part 3 to accompany H..R. 2273 Americans with Disabilities Act of 1990, Report of

the House Committee on the Judiciary, 101st

Congress, Second Session, May 15, 1990. S. Hrg. 104-114, Hearing of the Senate Committee on Labor and Human Resources re: Affirmative Action and the Office of Federal Contract Compli- ance, 104th Congress, First Session, June 15, 1995.

Individuals with Disabilities Education Act Amendments of 1997, H.R. REP. NO. 105-17 (May 13, 1997).

Individuals with Disabilities Education Act Amendments of 1997, S. REP. No. 105-17 (May 9, 1997).

Report on Legislative Activities of the Comm. On La- bor and Human Resources, U.S. Senate, 102nd.

Cong. (1991-1992).

S. Report 102-39, Report on Legislative Activities of

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Testimony and Statements

Fred Alvarez, Partner, Testimony on behalf of Wilson Sonsini Goodrich & Rosati, Palo Alto, CA., before

the House Subcommittee on Employer/Employee Relations, Committee on Education and the Workforce re: "The Future Direction of the Equal Employment Opportunity Commission (EEOC)," Mar.

3. 1998.

Alfred W. Blumrosen, Thomas A. Cowan Professor of

Law, Rutgers Law School, testimony before the Subcommittee on Select Education and Civil

Rights, U. S. House of Representatives, "Oversight Hearing on the Equal Employment Opportunity Commission (EEOC)," July 26, 1994. William H. Brown III, Esq., Schnader, Harrison, Se- gal & Lewis, Philadelphia, PA, "Testimony before Committee on Education and the Workforce,

Hearing to Review the Equal Employment Opportunity Commission," Oct. 21, 1997.

Michael A. Carvin, "Testimony before the House Sub- committee on the Constitution, Committee Civil

Rights Division Oversight," May 20, 1997. Gilbert Casellas, Chairman, U.S. Equal Employment Opportunity Commission, "Testimony before the Senate Committee on Labor and Human Resources, re: Equal Employment Opportunity

Commission Oversight Hearing," May 23, 1995. David A. Cathcart, Partner, "Testimony of Behalf of

Gibson, Dunn & Crutcher, Los Angeles, CA., before

the HouseSubcommittee on Employer-Employee Relations, Committee on Education and the Workforce re: The Future Direction of Equal Employment Opportunity Commission,"Mar. 3, 1998.

164

1 73
Midgdia Chinea-Varela, "Statement" for Hearing on

the Equal Employment Opportunity Commission

(EEOC): Is it Providing Fairness and Efficiency?" Oct. 21, 1997.

Robert Clegg, General Counsel, "Testimony on Behalf of the Center for Equal Opportunity," at the U.S. House Judiciary Subcommittee on the Constitution, House Judiciary Committee re: Civil Rights Division Oversight, February 25, 1998. Charles B. Craver, Professor, George Washington

University, statement before the Subcommittee on Select Education and Civil Rights Committee on

Education and Labor, U.S. House of Representatives, "Oversight Hearing on the Equal Employment Opportunity Commission," July 26, 1994. Martha F. Davis, Legal Director, "Testimony on behalf

of NOW Legal Defense and Education Fund, at the U.S. House of Representatives, Subcommittee on

the Constitution, Committee on the Judiciary,re: Civil Rights Division Oversight" Feb. 25, 1998. Michael T. Duffy, Chairman, Massachusetts Commission Against Discrimination, testimony before the Subcommittee on Education and Labor, U.S.

House of Representatives, "Oversight Hearing on

the Equal Employment Opportunity Commission,"

July 26, 1994.

Harris W. Fawell, Chairman, Subcommittee on Employer-Employee Relations, Committee on Education and the Workforce, U.S. House of Representatives, "The Future Direction of the Equal Em- ployment Opportunity Commission," Mar. 3, 1998. Harris W. Fawell, Chairman, Subcommittee on Employer-Employee Relations, Committee on Education and the Worforce, U.S. House of Representatives, Statement on the Committee Hearing on

"The Equal Employment Opportunity Commission

(EEOC): Is It Providing Fairness and Efficiency?" Oct. 21, 1997.

Wayne S. Flick, Senior Associate, "Testimony on behalf of Latham & Watkins before the House Subcommittee on the Constitution, Committee on the

Judiciary re: The Conduct of the Civil Rights Divi- sion of the Justice Department in United States v. City of Torrance, C.A. #93-4142 MRP USDC S.D. CA.," May 20. 1997.

Tony Gallegos, Commissioner, Equal Employment Opportunity Commission, Testimony before the Senate Special Committee on Aging, Pine Ridge, South Dakota, July 21, 1988, re: issues affecting American Indians in today's society.

Newt Gingrich, Speaker of the House, U.S. House of

Representatives, Testimony before the House Sub- committee on Employer-Employee Relations, Committee on Education and the Workforce re:

The Future Direction of the Equal Opportunity Commission: Mar. 3, 1998.

Linda S. Gottfredson, Professor, University of Dela- ware, "Testimony before the House Subcommittee on the Constitution, Committee on the Judiciary, re: Department of Justice Involvement with the 1994 Nassau County Police Entrance Examination," May 20, 1997.

Charles M. Hinton, Jr., City Attorney "Testimony on behalf of City of Garland, Texas before the Sub- committee on the Constitution, House Judiciary Committee re: Civil Rights Division Oversight," Feb. 25, 1998.

Paul M. Igasaki, Chairman, Equal Employment Op- portunity Commission, "Testimony before the

House Subcommittee on Employer-Employee Relations, Committee on Education and the Workforce," re: the Future Direction of Equal Employment Opportunity Commission, Mar. 3, 1998. Leroy T. Jenkins, Assistant General Counsel, Systemic Litigation Services Section, Office of the General Counsel, Equal Employment Opportunity Commission, "Testimony before the House Sub- committee on Government Activities and Transportation, Committee on Government Operations

(in response to questions posed to the then

Chairman of the Commission Clarence Thomas in

a Feb. 12, 1987 letter).

Steven E. Kane, Vice President, Corporate Affairs, Testimony on Behalf of Baxter Healthcare Corpo- ration before the House Subcommittee on Employer-Employee Relations, House Committee on

Education and the Workforce re: Future Direction

of the Equal Employment Opportunity Commis- sion," Mar. 3, 1998.

Judith A. Keeler, Director, Los Angeles District Office, Equal Employment Opportunity Commission, Testimony before the House Subcommittee on Employment OpportunitiesOversight Hearings on Equal Employment Opportunity in the Aero- space Industry , Saturday, Oct. 24, 1987. Judith A. Keeler, Director, Los Angeles District Office, Equal Employment Opportunity Commission, Testimony before the House Subcommittee on Employment Opportunities, Committee on Education and Labor, May 20, 1988. Pamela S. Karlan, Professor of Law, and Roy L. and Rosamond Woodruff Morgan, Research Professor, at the University of Virginia School of Law in Charlottesville, Virginia, "Testimony before the House Subcommittee on the Constitution, Committee on the Judiciary, re: Civil Rights Division Oversight, May 20. 1997Proposition 209 on the

Judiciary, raises grave constitutional concerns

under the well-settled voting rights law. Nancy Landon Kassebaum, United States Senator "Testimony before Senate Labor and Human Re- sources Committee Oversight Hearings on the Equal Employment Opportunity Commission," May 23, 1995.

Evan J. Kemp, Jr., Chairman, U.S. Equal Employ- ment Opportunity Commission, testimony before

the Subcommittee on Employment Opportunities,

U.S. House of Representatives, Oct. 30, 1991. Michael Kennedy, General Counsel, "Testimony on

behalf of The Associated General Contractors of

America" before the Subcommittee on the Constitution, House Judiciary Committee re: Civil

Rights Division Oversight, Feb. 25, 1998. Richard D. Komer, Legal Counsel, Equal Employment

Opportunity Commission before the Senate Sub- committee on Labor, Committee on Labor and

Human Resources, May 24, 1988. Nancy Kreiter, Research Director, "Testimony on behalf of the Women Employed Institute before the Senate Committee on Labor and Human Resources, re: Equal Employment Opportunity Commission Oversight Hearing," May 23, 1995. C. Victor Lander, Presentation before the United States House of Representatives, Committee on

165

174
Education and the Workforce, "Oversight of the EEOC: Is it Providing Fairness and Efficiency?"

Oct. 21, 1997. Weldon H. Latham, General Counsel, Testimony on

behalf of the National Coalition of Minority Busi- nesses and Senior Partners, Shaw Pittman, Potts

& Trowbridge before the House Subcommittee on

the Constitution, Committee on the Judiciary

"Federal Remedial Actions Remains an Imperative

to Establishing a level playing Field for Minorities

and Women in America," May 20, 1997. Bill Lann Lee, Acting Assistant Attorney General, Civil Rights Division, DOJ, Testimony before Committee on the Judiciary, re: Civil Rights Division Oversight, Feb. 25, 1998. Donald R. Livingston, Partner, Law firm of Akin,

Gump, Strauss, Hauer and Feld, L.P.P,

"Testimony as former General Counsel of the U.S. Equal Employment Opportunity Commission be- fore the Senate Committee on Labor and Human

Resources," May 23, 1995.

Linda G. Morra, Director, Education and Employment Issues, Human Resources Division, General Accounting Office, Statement, "EEOC: An Overview," Testimony before the Subcommittee on Select Education and Civil Rights, Committee on Education and Labor, U.S. House of Representatives,"

July 27, 1993 National Council of La Raza, "Testimony Regarding

the Performance of the United States Equal Employment Opportunity Commission," Senate

Committee on Labor and Human Resources, Subcommittee on Employment and Productivity, U.S.

Senate," Apr. 28, 1992. Helen Norton, Director of Legal and Public Policy, "Testimony of behalf of the National Partnership

for Women & Families (formerly known as the Women's Legal Defense Fund) before the House

Subcommittee on Employer-Employee Relations, Committee on Education and the Workforce re:

the Future Direction of the Equal Employment Opportunity Commission", Mar. 3, 1998.

Major R. Owens, Chairman, Subcommittee on Select Education and Civil Rights, U.S. House of Repre- sentatives, Opening Statement, "Oversight Hearing on the Equal Employment Opportunity Com- mission (EEOC)," July 26, 1994. Isabelle Katz Pinzler, Acting Assistant Attorney Gen- eral, "Testimony on Behalf of the Civil Rights division before the House Subcommittee on the Constitution, Committee on Judiciary re: Civil Rights

Division Oversight May 20, 1997.

James A. Quirk, SPHR, Manager, Computer Sciences Raytheon "Testimony on behalf of The Society for Human Resource Management" before the Senate Committee on Labor and Human Resources, May

23, 1995." Susan Buckingham Reilly, Washington Field Office Director, U.S. Equal Employment Opportunity Commission, statement before the Subcommittee on

Select Education and Civil Rights Committee on Education and Labor, U.S. House of Representatives, "Oversight Hearing on the Equal Employment Opportunity Commission,"July 26, 1994.

John P. Relman, Washington Lawyers' Committee for Civil Rights and Urban Affairs, statement before

the Subcommittee on Sele,:t Education and Civil

Rights, U.S. House of Representatives, "Oversight Hearing on the Equal Employment Opportunity Commission," July 26, 1994. David L. Rose, Testimony before the Subcommittee on Select Education and Civil Rights Committee on Education and Labor, U.S. House of Representatives, "Oversight Hearing on the Equal Employ- ment Opportunities Commission," July 26, 1994. Morton Rosenberg, Specialist in American Public Law, " Testimony on behalf of the Congressional Research Service, House Subcommittee on the

Constitution, House Judiciary Committee re: Civil

Rights Division Oversight, Feb. 25, 1998. Stanley J. Ross, President, Barrister Referrals, Ltd., "Statement in Support of Testimony to the U.S. House Committee on Education and the Workforce," Oct. 21, 1997. Richard T. Seymour, "Testimony on Behalf of the Lawyers' Committee for Civil Rights Under Law," at U.S. House of Representatives, Committee on Education and the Workforce, Oversight Hearing on the U.S. Equal Employment Opportunity Commission, Oct. 21, 1997.

Cathie B. Shattuck, "Testimony on behalf of the Soci- ety for Human Resource Management before the House Subcommittee on Employer-Employee Relations, Committee on Education and the Workforce re: Future Direction of the Equal Employ- ment Opportunity Commission," Mar. 3, 1998. Lawrence M. Stratton, J.D. Research Fellow,

"Testimony on behalf of the institute for Political Economy before the House Subcommittee for the Constitution, Committee on the Judiciary, re:

Civil Rights Division Oversight," May 20, 1997.

Stephen Tallent, Gibson, Dunn & Crutcher,

"Testimony before the Senate Committee on Labor

and Human Resources , re: Equal Employment

Opportunity Commission Oversight Hearing,"

May 23, 1995. Clarence Thomas, Chairman, Equal Employment Opportunity Commission, Testimony before the

House Subcommittee on Commerce, Justice, State

and the Judiciary, Committee on Appropriations, Mar. 5, 1987 re: FY 1988 Budget. Clarence Thomas, Chairman, Equal Employment Opportunity Commission, Testimony before the Senate Subcommittee, Justice, State, the Judiciary, and Related Agencies, Committee on Appropriations, May 12; 1987. Clarence Thomas, Chairman, Equal Employment Opportunity Commission, Testimony before the House Subcommittee on Employment and Housing re: Equal Employment Opportunity Program

for Federal Workers, comment on H.R.3330, June

25, 1987. Clarence Thomas, Chairman and R. Gaull Silberman,

Vice Chairman, Equal Employment Opportunity Commission, Testimony before the Senate Special Committee on Aging, re: enforcing the ADEA,

Sept. 10. 1987. Clarence Thomas, Chairman, Equal Employment Opportunity Commission, Testimony before the House Select Committee on Aging re: Issuance of Final Rule which permits an Employer to obtain a Voluntary Waiver from an Older Worker of ADEA

Rights, which is not Supervised or Reviewed by

the Commission, Jan. 28, 1988.

166

175
Clarence Thomas, Chairman, Equal Employment Opportunity Commission, Testimony before the House Subcommittee on Commerce, Justice, State

and Judiciary Committee on Appropriations, re: FY 1989 Budget, Mar. 7, 1988. Clarence Thomas, Chairman, Equal Employment Opportunity Commission, Testimony before the House Subcommittee on Employment Opportunities, Committee on Education and Labor re: Dis- cussions on the EEOC's position on the Waiver

rule under the ADEA, Mar. 17, 1988.

Clarence Thomas, Chairman, Equal Employment Opportunity Commission, Testimony before the House Subcommittee on Telecommunications and

Finance of the Committee on Energy and Com- merce, May 17, 1988, re:. Equal Employment Op- portunity in the Broadcast, Cable and Telephone Communications Industries.

Clarence Thomas, Chairman, Equal Employment Opportunity Commission, Testimony before the House Subcommittee on Employment and Housing, Committee on Government Operations, re:

Why EEOC let the Statute of Limitations lapse in

hundreds of open ADEA charges, Mar. 29, 1988. Clarence Thomas, Chairman, Equal Employment

Opportunity Commission, Testimony before House Subcommittee on Civil Service, Committee on Post

Office and Civil Service re: Discuss Hispanic em- ployment in the federal government, June 14, 1988.

Clarence Thomas, Chairman, Equal Employment Opportunity Commission, Testimony before the Senate Special Committee on Aging re: discuss EEOC's administration and enforcement of ADEA, June 24, 1988.

Clarence Thomas, Chairman, Equal Employment Opportunity Commission, Testimony before the House Subcommittee on Civil Service, Committee

on Post Office of Civil Service re: discuss OPM's

new plan to test and hire professionals for entrylevel positions in the federal government, July 12, 1988.

Clarence Thomas, Chairman, Equal Employment Opportunity Commission, Testimony before the House Subcommittee on Commerce, Justice, State and Judiciary, Committee on Appropriations re:

EEOC's fiscal year 1990 budget, Feb. 21, 1989. Clarence Thomas, Chairman, Equal Employment Opportunity Commission, Testimony before the Senate Subcommittee on Labor, Committee on

Labor and Human Resources, re: S.54, the Age Discrimination in Employment Waiver Protection Act, Mar. 16, 1989.

167

Clarence Thomas, Chairman; Equal. Employment Opportunity Commission, Testimony before the House Subcommittee on Employment and Housing, Committee on Government Operations, re: why some ADEA charges have exceeded the Stat- ute of Limitations during the past year and to dis- cuss actions by EEOC concerning Ms. Lynn Bruner, Mar. 20, 1989.

Clarence Thomas, Chairman, Equal Employment Opportunity Commission, Testimony before the House Subcommittee on Employment Opportunities, Committee on Education and Labor and the

House Select Committee on Aging, re: H.R. 1432, Age Discrimination in Employment Waiver Protection Act of 1989, Apr. 18, 1989.

Testimony on the Ticket to Work and Self-Sufficiency Act of 1998, Mar. 17, 1998 and accompanying

news release.

Miscellaneous

Cornell University, School of Industrial and Labor Relations, Program on Employment and Disability, No Barriers for Business: bnplementing the Americans with Disabilities Act (video and training material), funded by National Institute on Disability and Rehabilitation Research, 1996. Cornell University, School of Industrial and Labor Relations, Program on Employment and Disability, bnplementing the Americans with Disabilities Act, various issues.

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Special Analyses Budget of the United States Gov- ernment, Fiscal Year 1981. Special Analyses JCivil Rights ActivitiesBudget of the United States Government, 1983.

Special Analyses Budget of the United States Gov- ernment, Fiscal Year 1985.

Special Analyses Budget of the United States Gov- ernment, Fiscal Year 1986.

Special Analyses Budget of the United States Gov- ernment, Fiscal Year 1987.

Special Analyses Budget of the United States Gov- ernment, Fiscal Year 1988.

Special Analyses Budget of the United States Gov- ernment, Fiscal Year 1989. The Access Board (a.k.a. U.S. Architectural and

Transportation Barriers Compliance Board) Other Resources Listing re: List of other Federal agen- cies that provide technical assistance to the ADA. Disability Rights Education and Defense Fund, Inc. (DREDF) "A Guide to Legal Documents."

(undated).

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