ODDC- DOJ - Delivering on the Promise

ODDC Banner

TITLE: Delivering on the Promise: U.S. Department of Justice Self-Evaluation to Promote Community Living for People with Disabilities

AUTHOR: Department of Justice, specific author unknown (KACW 2/19/03)

SUMMARY: The report discusses the Department of Justice’s accomplishments in enforcing the ADA, the Civil Rights of Institutionalized Persons Act (CRIPA), and the Fair Housing Act (FHA). It outlines the barriers to full implementation of each law and proposes a blueprint for future action for each law.

THE ADA: The Department played a part in the Olmstead decision, where the Supreme Court interpreted the ADA to require state and local governments to provide services to people with disabilities in the most integrated setting and requires states to place individuals in community settings whenever appropriate. The Department provides technical assistance on the regulation, conducts investigations and pursues litigation to enforce the ADA. It also seeks to resolve various kinds of discrimination, from policies prohibiting individuals with certain disabilities from receiving services, to architectural barriers to access for individuals who use wheelchairs, to communication barriers that prevent individuals with hearing or speech disabilities from effectively communicating. Specifically the Department has:

Enforced the ADA regarding discriminatory zoning, leasing, and permitting practices that effect facilities serving or housing individuals with disabilities and enforced provisions for new construction and alterations.
Enforced the ADA regarding a wide variety of public and private transportation service providers, including public buses and taxicabs;
Issued technical assistance documents stating that gas stations are required to ensure equal access to their customers with disabilities by providing refueling assistance without any charge beyond the self-service price.
Worked to ensure the accessibility of a variety of health care and counseling services to individuals with disabilities. It has embarked upon a nationwide campaign to improve communications access in hospitals for people who are deaf, hard of hearing, or have speech disabilities. Finally it ensures 9-1-1 emergency services provide direct, equally effective access to TTY, or text telephone, users.
Made serious efforts to combat discrimination in childcare, arguing that individuals with disabilities have the right to care in the most appropriate setting.
Enforced the ADA against state and local government employers who have discriminated.

Despite ADA enforcement, technical assistance, and significant advancement of the rights of individuals with disabilities, barriers still remain, including, unnecessary institutionalization and a lack of accessible housing, transportation, and health care services. The Department has developed a plan to overcome these barriers including:

Developing and issuing three informational documents; one for people living in institutions to address the ADA and the rights protected in the Olmstead decision; a similar document targeted for people who are at risk of being institutionalized; and a document designed to assist states in implementing Olmstead.
Ensuring the accessibility of buses and paratransit services with the Department of Transportation and developing a list of criteria to guide DOT to refer appropriate paratransit complaints to DOJ for enforcement.
Working to ensure the accessibility of mental health services for people with communication disabilities.
Focusing on ending discrimination in providing dental services to people with cognitive and developmental disabilities living in the community and in institutions.
Expanding the mediation program for Olmstead-related claims, including training mediators, investigating ways to train lay advocates to assist individuals with certain disabilities that may affect the equality of bargaining power, and investigating and working toward a formal arrangement.

The Civil Rights of Institutionalized Persons Act: The Civil Rights of Institutionalized Persons Act (CRIPA) protects the rights people living in institutions. Under the law, the Department may initiate a civil action if it believes that a state or local government is engaged in a pattern or practice that deprives people living in institutions of their rights. CRIPA enforces a right directly addressed by Olmstead found in Title II of the ADA, that states an institutionalized person has the right to be served in the most integrated setting appropriate to the individual’s needs. The Department investigates conditions of confinement in nursing homes, psychiatric hospitals, and facilities for persons with developmental disabilities and reviews the appropriateness of placement of individuals in these institutions. It also reviews procedures to ensure the care and treatment of individuals transitioned into the community is safe and appropriate to meet the individual’s needs. The Department collects evidence to determine whether there are violations of Title II of the ADA and enforces other Federal statutes and regulations, such as Section 504 of the Rehabilitation Act, Title XIX of the Social Security Act, and various Medicaid programs. The Department has investigated ADA integration regulation violations at 31 institutions for people with developmental disabilities, 11 psychiatric hospitals, 6 nursing homes, and 1 residential school for students with visual disabilities. Specific accomplishments include:

Being instrumental in transferring hundreds of people from institutions to community settings.
Conducting regular investigations of health care facilities and reviews the appropriateness of placement of individuals in institutions and works with a number of institutions to identify individuals who would be more appropriately served in the community. It then identifies required residences, day programs, vocational opportunities, specialized services, medical care, and related services.
Ensures people moved into the community are moved into safe and appropriate settings

The Department’s work under CRIPA is limited by:

It has no jurisdiction to investigate individual Olmstead complaints under CRIPA or to investigate solely privately run facilities
Its ability to conduct CRIPA investigations is dependent on the cooperation of the jurisdiction being investigated. Some states and local governments have resisted the Department’s efforts to investigate the services provided to individuals who are moved from an institution into the community.
Oversight of community support services is not always adequate
Shortage of direct care workers to provide services to individuals moved from institutions into the community.

To continue to break down the barriers to persons with disabilities living in institutions to move into the community, the Department will continue to enforce CRIPA by devoting resources to investigations and litigation where individuals are unnecessarily institutionalized. It will also continue to provide substantial technical assistance to jurisdictions on complying with Olmstead. Finally, it will take the following specific steps to enhance its ability to enforce Olmstead and help move people from institutions to community settings when appropriate.

Consider additional tools to improve its investigative abilities to address issues arising from community placements and to address allegations of discrimination in private institutions.
Increase staff training on the benefits of community placement over institutionalization.
Staff will increase its efforts to educate parents and other family members on the benefits of community placement.
Explore ways to transition competent former institutional staff to work in community-placement settings.
Coordinate its efforts with other federal agencies to address quality of care issues in home and community-based services; to take advantage of federal money available for the costs of housing in the community; reduce institutional biases in the Medicaid program; and explore providing support for family care givers.

The Fair Housing Act (FHA): The Fair Housing Act prohibits discrimination on the basis of disability in housing transactions ensuring that persons with disabilities are able to live in communities of their choice. The Department shares authority for enforcing the FHA with the Department of Housing and Urban Development (HUD). HUD investigates, conciliates, and adjudicates administrative complaints alleging violations of the FHA and the Department investigates and litigates the claims. Its enforcement has concentrated on two major areas: ensuring that new multi-family housing is built according to the FHA’s accessibility and adaptability requirements; and ensuring that zoning and other regulations concerning land-use do not hinder the residential choices of individuals with disabilities by unnecessarily restricting communal or congregate-residential arrangements. The FHA's design and construction requirements apply to multi-family dwellings of four or more units built for first occupancy after March 13, 1991. Section 504 of the 1973 Rehabilitation Act requires recipients of Federal funds make at least 5% of their newly constructed or substantially rehabilitated housing accessible to persons with mobility disabilities and at least 2% accessible to persons with hearing or vision disabilities. Since October 1, 1996, the Civil Rights Division has brought 38 lawsuits against developers, builders, owners, architects, and/or site engineers and brought 10 cases to enforce the non-discrimination provisions regarding group homes for persons with disabilities. Most of the cases have been resolved by consent decrees by changing minor things. The Department is combating discrimination against people living in group homes by prohibiting cities’ and other local governments’ use of zoning or land-use decisions or policies to exclude or otherwise discriminate against persons with disabilities by denying permits or zoning approval to group homes for persons with disabilities. Despite the progress that has been made, there remains a huge unmet need for affordable housing that is accessible for several reasons:

New construction requirements for multi-family housing are widely ignored. Much of this noncompliance may result from the lack of knowledge about the requirements on the part of builders, architects, and engineers. Because the design curricula at universities and technical schools do not usually include courses on accessible design, many professionals who design multi-family and public housing are often unfamiliar with the accessibility requirements. State and local building codes typically do not incorporate Federal accessibility requirements relating to housing.
Modifications or retrofits to existing housing are expensive and related legal obligations are misunderstood and retrofitting to bring non-compliant, multi-family housing and public housing into compliance with the FHA and Section 504 can be expensive and difficult.
The FHA’s accessibility provisions are limited, multi-family housing that complies with FHA requirements is often not fully accessible to all persons with mobility disabilities because the FHA requires only a modest level of accessibility or adaptability for persons who use wheelchairs.
Many public housing authorities routinely violate the law, resulting in a wide spread lack of accessible public housing.
In communities where accessible housing does exist, some housing providers still have policies that exclude or place discriminatory conditions of residence on persons with disabilities.
Community opposition to group homes continues and it often means group homes are not built or built in less desirable settings to avoid community opposition.

To continue to break down barriers against persons with disabilities living in communities, the Department will continue and enhance its fair housing program by:

Devoting substantial resources to investigate and enforce actions against developers, builders, architects, and site engineers who design and/or construct multi-family housing that does not comply with the requirements of the FHA and rental offices and other places of public accommodation within housing complexes that do not comply with the ADA.
Encourage advocacy groups and private counsel representing persons with disabilities to alert the Department to private lawsuits where participation by the Department would assist the court in interpreting and applying the provisions of the FHA and Section 504 of the Rehabilitation Act.
Work with other agencies to improve the accessibility of public housing and to ensure that tax incentives do not go to those who discriminate on the basis of disability in housing
Work with HUD to increase the accessibility of public housing by improving enforcement of the nondiscrimination requirements.
Work with HUD to provide training and technical assistance on compliance with the accessibility requirements of the FHA and Section 504 to increase architects’, developers’, site engineers’, and public housing officials' knowledge of, and compliance with, these requirements. It will also encourage universities offering courses of study in architecture and engineering to provide courses in accessible design. The Department will also work with the National Association of Home Builders, the American Institute of Architects, and other groups to increase its members’ knowledge and understanding of the accessibility requirements of the FHA and Section 504.
Work with HUD on technical assistance to improve housing providers’ understanding of the FHA and Section 504 and the improve enforcement of both Acts.

Return to the top of the page.