Statement of the Department of Justice on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and Local Governments’ Employment Service Systems for Individuals with Disabilities

Footnotes

¹ 42 U.S.C. § 12101(a)(7) (2009).

² Id. §§ 12131(1), 12132; 28 C.F.R. § 35.130(d) (2016); Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210-11 (1998); Lane v. Kitzhaber, 841 F. Supp. 2d 1199, 1205-06 (D. Or. 2012) (holding that the ADA’s integration mandate extends to employment services and prohibits the unnecessary segregation, and risk of unnecessary segregation, of persons with disabilities in sheltered workshops).

³ A State’s obligations under the ADA are independent from the requirements of the Medicaid Act, including the requirements of the Home and Community Based Services regulations, 70 Fed. Reg. 2947, 3039 (Jan. 16, 2014) (codified at 42 C.F.R. §§ 440-47); see also “Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.” (June 22, 2011), Question 7 (discussing the interplay between the requirements of Title II of the ADA and the Medicaid Act).

⁴ 42 U.S.C. § 12101(b)(1). Section 504 of the Rehabilitation Act of 1973 similarly prohibits disability-based discrimination.  29 U.S.C § 794(a) (“No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .”). Claims under the ADA and the Rehabilitation Act are generally treated identically. 

⁵ 42 U.S.C. § 12101(a)(2). 

⁶ 28 C.F.R. § 35.130(d) (the “integration mandate”). 

⁷ 28 C.F.R. pt. 35, app. B (addressing § 35.130(d)). 

⁸ Olmstead, 527 U.S. at 607. 

⁹ 28 C.F.R. § 35.130(b)(7). 

¹⁰ Id.; See also Olmstead, 527 U.S. at 603-07.

¹¹ See, e.g., U.S. Dep’t of Health and Human Servs., Ctr. for Medicaid, CHIP and Survey & Certification, CMCS Informational Bulletin 5 (Sept. 16, 2011), available at https://www.medicaid.gov/federal-policy-guidance/downloads/CIB-09-16-2011.pdf[https://perma.cc/8B8P-3EH5]; see also Settlement Agreement, United States v. Rhode Island and the City of Providence, 1:13-cv-00442 (D.R.I. June 13, 2013); Consent Decree, United States v. Rhode Island, 1:14-cv-00175 (D.R.I. April 9, 2014); Consent Decree, Lane v. Brown (formerly Lane v. Kitzhaber), 12-cv-00138 (D. Or. Sept. 8, 2015), available at https://www.ada.gov/olmstead/olmstead_
enforcement.htm.

¹² 28 C.F.R. § 35.130(d).

¹³ Id. § 35.130(b)(7)(i) (“A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.”).

¹⁴ This guidance addresses the obligations of state and local governments under Title II of the ADA. Title I of the ADA covers public and private employers’ nondiscrimination obligations toward individuals with disabilities. Title III of the ADA covers the nondiscrimination obligations of public accommodations, including private providers of goods and services to people with disabilities.

¹⁵ See 28 C.F.R. § 35.130(b)(1) (prohibiting a public entity from discriminating “directly or through contractual, licensing or other arrangements, on the basis of disability”); id. § 35.130(b)(3)(i) (prohibiting a public entity from “directly or through contractual or other arrangements . . . utiliz[ing] criteria or methods of administration . . . [t]hat have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability”).

¹⁶ 28 C.F.R. pt. 35, app. B. 

¹⁷ “Competitive Integrated Employment,” consistent with the federal Workforce Innovation and Opportunity Act (WIOA), means work that is performed on a full-time or part-time basis (including self-employment): (a) For which an individual is compensated at a rate that: (1) Meets or exceeds state or local minimum wage requirements, whichever is higher; and (2) Is not less than the customary rate paid by the employer for the same or similar work performed by other employees who are not individuals with disabilities, and who are similarly situated in similar occupations by the same employer and who have similar training, experience, and skills; or (3) In the case of an individual who is self-employed, yields an income that is comparable to the income received by other individuals who are not individuals with disabilities, and who are self-employed in similar occupations or on similar tasks and who have similar training experience, and skills; and (b) For which an individual is eligible for the level of benefits provided to other employees; and (c) Which is at a location where the employee interacts with other persons who are not individuals with disabilities (not including supervisory personnel or individuals who are providing services to such employee) to the same extent that individuals who are not individuals with disabilities and who are in comparable positions interact with other persons; and (d) Which, as appropriate, presents opportunities for advancement that are similar to those for other employees who are not individuals with disabilities and who have similar positions. See WIOA, Pub. L. No. 113-128, 128 Stat. 1425, 1633-34 (2014). 

¹⁸ See Disability Advocates, Inc. v. Paterson, 653 F. Supp. 2d 184, 198-216 (E.D.N.Y. 2009) (describing characteristics of institutions to include, inter alia, large numbers of individuals with disabilities congregated together with few opportunities to interact with individuals outside of the institution), vacated on other grounds sub nom. Disability Advocates, Inc. v. N.Y. Coal. for Quality Assisted Living, Inc.see also id. at 223-24 (“Whether a particular setting is an institution is nonetheless a relevant consideration in determining whether it enables interactions with nondisabled persons to the fullest extent possible. It is clear that, ‘where appropriate for the patient, both the ADA and the [Rehabilitation Act] favor integrated, community-based treatment over institutionalization.’ This echoes Olmstead’s recognition that ‘institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life . . . and institutional confinement severely diminishes individuals’ everyday activities.’” (first quoting Frederick L. v. Dep’t of Pub. Welfare, 364 F.3d 487, 491-92 (3d Cir. 2004); then quoting Olmstead, 527 U.S. at 600)).

¹⁹ “Sheltered workshop” refers to a segregated facility where primarily or exclusively persons with disabilities perform contract work or receive prevocational services. Sheltered workshops are usually center-based facilities that possess institutional qualities in which persons with disabilities have little or no contact with non-disabled persons besides paid staff. People with disabilities in sheltered workshops often earn wages that are well below minimum wage

²⁰ “Supported Employment Services” refers to services that allow persons with disabilities to work in competitive integrated employment. Such services may include person-centered employment planning, vocational assessments, job development analysis, job placement, job training, job carving, job coaching, negotiation with prospective employers, training and systematic instruction, benefits support, transportation, asset development, career advancement services, and other workplace support services and ongoing supports.

²¹ See LEAD Center & U.S. Dep’t of Labor, Office of Disability Emp’t Policy (“ODEP”), EMPLOYMENT FIRST TECHNICAL BRIEF #3: CRITERIA FOR PERFORMANCE EXCELLENCE IN EMPLOYMENT FIRST STATE SYSTEMS CHANGE & PROVIDER TRANSFORMATION 8-9 (2016), AVAILABLE AT HTTP://EMPLOYMENTFIRST.LEADCENTER.ORG/EMPLOYMENT-FIRST-RESOURCES/CRITERIA-FOR-PERFORMANCE-EXCELLENCE-IN-EMPLOYMENT-FIRST-STATE-SYSTEMS-CHANGE-PROVIDER-TRANSFORMATION [HTTPS://PERMA.CC/VT6U-Q226] [HEREINAFTER ODEP TECHNICAL BRIEF #3] (“ODEP ENCOURAGES STATE GOVERNMENTS TO PRIORITIZE AND FINANCIALLY INCENTIVIZE THE FOLLOWING TYPES OF EMPLOYMENT SERVICES AND EVIDENCE-BASED EFFECTIVE PRACTICES THAT LEAD TO COMPETITIVE, INTEGRATED EMPLOYMENT FOR INDIVIDUALS WITH DISABILITIES: COMPETITIVE PLACEMENT . . . CUSTOMIZED EMPLOYMENT . . . SUPPORTED EMPLOYMENT . . . SELF-EMPLOYMENT . . . [AND] ENTREPRENEURSHIP OR SMALL BUSINESS.”).

²² See, e.g., U.S. Dep’t of Justice, Civil Rights Div., Title II ADA Investigation of the City of Providence Regarding the Harold A. Birch Vocational Program at Mount Pleasant High School (“United States v. Rhode Island and City of Providence Letter of Findings”) (June 7, 2013); U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIV., UNITED STATES’ TITLE II ADA INVESTIGATION OF EMPLOYMENT, VOCATIONAL, AND DAY SERVICES FOR PERSONS WITH INTELLECTUAL AND DEVELOPMENTAL DISABILITIES IN RHODE ISLAND (“UNITED STATES V. RHODE ISLAND LETTER OF FINDINGS”) (JANUARY 6, 2014), AVAILABLE AT HTTPS://WWW.ADA.GOV/OLMSTEAD/OLMSTEAD_DOCS_LIST.HTM#LETTERS OF FINDINGS [HTTPS://PERMA.CC/N962-HYLX]; U.S. DEP’T OF JUSTICE, CIVIL RIGHTS DIV., UNITED STATES’ INVESTIGATION OF EMPLOYMENT AND VOCATIONAL SERVICES FOR PERSONS WITH INTELLECTUAL AND DEVELOPMENTAL DISABILITIES IN OREGON PURSUANT TO THE AMERICANS WITH DISABILITIES ACT  (“LANE V. BROWN (FORMERLY LANE V. KITZHABER) LETTER OF FINDINGS”) (JUNE 29, 2012), AVAILABLE AT HTTPS://WWW.ADA.GOV/OLMSTEAD/OLMSTEAD_DOCS_LIST.HTM#LETTERS OF FINDINGS [HTTPS://PERMA.CC/N962-HYLX].

²³ See U.S. Dep’t of Health and Human Servs., Section 2402(a) of the Affordable Care Act – Guidance for Implementing Standards for Person-Centered Planning and Self-Direction in Home and Community-Based Services Programs 4-8 (June 6, 2014), available at http://www.acl.gov/Programs/CIP/OCASD/docs/2402-a-Guidance.pdf [https://perma.cc/4J8S-W3KF].

²⁴ See ODEP, Integrated Employment Toolkit, available at https://www.dol.gov/odep/ietoolkit/researchers.htm [https://perma.cc/7PCU-NFLM].

²⁵ See ODEP Technical Brief #3, supra note 21 at 3.

²⁶ Id.

²⁷ See U.S. Dep’t of Justice, Civil Rights Div., Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and OLMSTEAD V. L.C. (JUNE 22, 2011), AVAILABLE AT HTTPS://WWW.ADA.GOV/OLMSTEAD/Q&A_OLMSTEAD.HTM [HEREINAFTER DEPARTMENT OF JUSTICE STATEMENT], AT QUESTION 4; SEE ALSO DAY V. DISTRICT OF COLUMBIA, 894 F. SUPP. 2D 1, 23 (D.D.C. 2012) (“[A]LTHOUGH THE COURT IN OLMSTEAD NOTED THAT A STATE ‘GENERALLY MAY RELY ON THE REASONABLE ASSESSMENTS OF ITS OWN PROFESSIONALS,’ . . . IT DID NOT HOLD THAT SUCH A DETERMINATION WAS REQUIRED TO STATE A CLAIM. SINCE OLMSTEAD, LOWER COURTS HAVE UNIVERSALLY REJECTED THE ABSOLUTIST INTERPRETATION PROPOSED BY DEFENDANTS” (QUOTING OLMSTEAD, 527 U.S. AT 602).) (CITING FREDERICK L. V. DEP’T OF PUB. WELFARE157 F. SUPP. 2D 509, 539-40 (E.D. PA. 2001) (DENYING DEFENDANTS’ MOTION TO DISMISS OLMSTEAD CLAIMS AND REJECTING THE ARGUMENT THAT OLMSTEAD “REQUIRE[S] A FORMAL ‘RECOMMENDATION’ FOR COMMUNITY PLACEMENT”)); DISABILITY ADVOCATES, INC., 653 F. SUPP. 2D AT 259 (REQUIRING A DETERMINATION BY TREATING PROFESSIONALS, WHO ARE CONTRACTED BY THE STATE, “WOULD EVISCERATE THE INTEGRATION MANDATE” AND “CONDEMN THE PLACEMENTS OF [INDIVIDUALS WITH DISABILITIES IN ADULT HOMES] TO THE VIRTUALLY UNREVIEWABLE DISCRETION” OF THE STATE AND ITS CONTRACTORS); JOSEPH S. V. HOGAN, 561 F. SUPP. 2D 280, 291 (E.D.N.Y. 2008) (“I REJECT DEFENDANTS'  ARGUMENT THAT OLMSTEAD REQUIRES THAT THE STATE’S MENTAL HEALTH PROFESSIONALS BE THE ONES TO DETERMINE THAT AN INDIVIDUAL’S NEEDS MAY BE MET IN A MORE INTEGRATED SETTING.”); LONG V. BENSON, NO. 08-0026, 2008 WL 4571904, AT *2 (N.D. FLA. OCT. 14, 2008) (REFUSING TO LIMIT CLASS TO INDIVIDUALS WHOM STATE PROFESSIONALS DEEMED COULD BE TREATED IN THE COMMUNITY, BECAUSE A STATE “CANNOT DENY THE [INTEGRATION] RIGHT SIMPLY BY REFUSING TO ACKNOWLEDGE THAT THE INDIVIDUAL COULD RECEIVE APPROPRIATE CARE IN THE COMMUNITY. OTHERWISE THE RIGHT WOULD, OR AT LEAST COULD, BECOME WHOLLY ILLUSORY”)).

²⁸ Department of Justice Statement, supra note 27, at Question 4.

²⁹ Id.

³⁰ See Lane v. Kitzhaber, 283 F.R.D. 587, 600 (D. Or. 2012) (“Due to their disability, many individuals with [intellectual or developmental disabilities] may not ask for supported employment services because they are not aware of them or because they are not aware that they have any choices as to services that they are entitled to receive.”).

³¹ Lane v. Kitzhaber, No. 3:12-cv-00138 –ST, 2013 WL 6798470, at *2 (D. Or. Dec. 19, 2013)

³² It is important to note that the number of hours a person with a disability works in an integrated setting, not necessarily the number of service hours provided, is most relevant to this inquiry.

³³ Providing compensation and benefits to people with disabilities in an employment setting that are not equal to those offered to peers without disabilities performing the same job may also violate Title I or Title III of the ADA or other federal laws. Individual service provider entities, including sheltered workshops, have obligations not to discriminate against individuals with disabilities. Title I of the ADA covers employers with 15 or more employees. As such, Title I’s coverage can include individual service provider entities or sheltered workshops in their capacity as private employers. Title I prohibits employers from discriminating on the basis of disability in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment and requires reasonable accommodations. 42 U.S.C. § 12112 et seq. Also, under Title III of the ADA, individuals with disabilities cannot be discriminated against on the basis of disability in the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). A “social service center establishment” is a place of public accommodation, 42 U.S.C. § 12181(7), and can include an individual service provider entity or a sheltered workshop. Accordingly, individual service provider entities may also have obligations not to discriminate against their clients as places of public accommodation under Title III of the ADA.

³⁴ See ODEP Technical Brief #3, supra note 21, at 9 (stating that “ODEP encourages states to assure the use of individualized supported employment services (SES) to facilitate competitive, integrated employment outcomes as opposed to focusing on group supported employment options. To be clear, competitive, integrated employment, by definition, does not include work crews, enclaves, social enterprise, or other forms of group employment”).

³⁵ Department of Justice Statement, supra note 27, at Question 12.

³⁶ Olmstead, 527 U.S. at 605-06.

³⁷ Day, 894 F. Supp. 2d at 26.

³⁸ Department of Justice Statement, supra note 27, at Question 12.

³⁹ See WIOA Definition of “Competitive Integrated Employment,” supra note 17.

⁴⁰ See, e.g., Olmstead, 527 U.S. at 605 (“Nor is it the ADA’s mission to drive States to move institutionalized patients into an inappropriate setting, such as a homeless shelter . . .”).