Notice2023-24989
Questions and Answers on the Application of the ADA's Integration Mandate and Olmstead v. L.C. to Employment and Day Services for People With Disabilities; Notice of Availability
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Published
November 13, 2023
Issuing agencies
Justice Department
Abstract
The U.S. Department of Justice (Department) is announcing the availability of a guidance entitled "Questions and Answers on the Application of the ADA's Integration Mandate and Olmstead v. L.C. to Employment and Day Services for People with Disabilities." This guidance describes how the integration mandate applies to the provision of employment and day services in segregated settings.
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<title>Federal Register, Volume 88 Issue 217 (Monday, November 13, 2023)</title>
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[Federal Register Volume 88, Number 217 (Monday, November 13, 2023)]
[Notices]
[Pages 77612-77614]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-24989]
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DEPARTMENT OF JUSTICE
Questions and Answers on the Application of the ADA's Integration
Mandate and Olmstead v. L.C. to Employment and Day Services for People
With Disabilities; Notice of Availability
AGENCY: Civil Rights Division, Department of Justice.
ACTION: Notice of availability.
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[[Page 77613]]
SUMMARY: The U.S. Department of Justice (Department) is announcing the
availability of a guidance entitled ``Questions and Answers on the
Application of the ADA's Integration Mandate and Olmstead v. L.C. to
Employment and Day Services for People with Disabilities.'' This
guidance describes how the integration mandate applies to the provision
of employment and day services in segregated settings.
FOR FURTHER INFORMATION CONTACT: Rebecca B. Bond, Chief, Disability
Rights Section, Civil Rights Division, U.S. Department of Justice, at
(202) 307-0663 (voice or TTY) (not a toll-free number) or
<a href="/cdn-cgi/l/email-protection#a4e5e0e58af0e5e0cbc7d7e4d1d7c0cbce8ac3cbd2"><span class="__cf_email__" data-cfemail="521316137c0613163d3121122721363d387c353d24">[email protected]</span></a>. Information may also be obtained from the
Department's toll-free ADA Information Line at (800) 514-0301 (voice)
or (833) 610-1264 (TTY).
You may obtain copies of this Notice in an alternative format by
calling the ADA Information Line at (800) 514-0301 (voice) or (833)
610-1264 (TTY).
SUPPLEMENTARY INFORMATION:
I. Background
The Department is announcing the availability of a guidance
entitled ``Questions and Answers on the Application of the ADA's
Integration Mandate and Olmstead v. L.C. to Employment and Day Services
for People with Disabilities'' (``2023 guidance''). The Department's
regulation implementing title II of the Americans with Disabilities Act
(``ADA'') requires public entities to ``administer services, programs,
and activities in the most integrated setting appropriate to the needs
of qualified individuals with disabilities.'' \1\ In Olmstead v. L.C.,
527 U.S. 581 (1999), the Supreme Court, interpreting the ADA's
integration mandate, held that title II prohibits the unjustified
segregation of individuals with disabilities. The Department's new 2023
guidance describes how the integration mandate applies to the provision
of employment and day services in segregated settings.
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\1\ 28 CFR 35.130(d).
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The Department issued a similar guidance in 2016, entitled
``Statement of the Department of Justice on the 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'' (``2016 guidance''), which
was subsequently withdrawn in 2017.
The Department's 2023 guidance largely incorporates the underlying
substance of the withdrawn 2016 guidance, but includes certain new
language as described in more detail below.
E.O. 13777 and the Withdrawal of the Department's 2016 Guidance
In February 2017, the President issued Executive Order 13777, which
required each agency to create a Regulatory Reform Task Force to
identify regulatory actions to repeal, replace, or modify. Pursuant to
Executive Order 13777, the Department developed a Regulatory Reform
Task Force (``Task Force''), which published a Request for Comment in
the Federal Register in June 2017 soliciting public input on ``the
various kinds of actions taken by the Department's components that the
public perceives to be regulatory in nature * * *.'' \2\ The Department
noted that this Request for Comment was issued solely for information
and planning purposes and indicated that it would give careful
consideration to the comments, but did not anticipate providing a
point-by-point response to each comment submitted.\3\ The comment
period closed in August 2017.
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\2\ 82 FR 29248 (June 28, 2017).
\3\ Id. at 29249.
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The Department's Task Force received 31 total comments, 14 of which
related to the Department's 2016 guidance. The majority of those
commenters expressed a belief that the Department's 2016 guidance
negatively affected individuals with disabilities by limiting their
choices to work in a segregated sheltered workshop as opposed to in
integrated employment settings. Those commenters emphasized their
belief that individuals with disabilities have the right to choose the
employment setting that best meets their needs and argued that
statements in the 2016 guidance failed to recognize this.
In December 2017, the Department withdrew its 2016 guidance to
afford further discussion with relevant stakeholders, including public
entities and the disability community, as to how best to provide
technical assistance in this area.\4\ The Department explained that its
withdrawal of the 2016 guidance did not ``change the legal
responsibilities of State and local governments under title II of the
ADA, as reflected in the ADA, its implementing regulations, and other
binding legal requirements and judicial precedent, including the U.S.
Supreme Court's Olmstead decision.'' \5\
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\4\ See Dep't of Just., ``Withdrawal of the 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'' (Dec. 21, 2017), <a href="https://www.ada.gov/withdrawn_olmstead.html">https://www.ada.gov/withdrawn_olmstead.html</a>.
\5\ Id.
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Since then, the Department has heard from numerous stakeholders who
have indicated that technical assistance in this area is needed and
asked the Department to reissue its withdrawn 2016 guidance.
Issuance of the 2023 Guidance
After consideration of the comments the Task Force received on the
2016 guidance and additional input from stakeholders, the Department is
now issuing its 2023 guidance. The bulk of the differences between the
2023 and 2016 documents are intended to (1) address public comments;
(2) improve readability and reduce redundancy; and (3) enhance legal
precision. While the underlying substance of the 2023 guidance remains
consistent with that of the 2016 guidance, the Department has included
new language throughout the 2023 guidance to advance these goals.
First, the Department included new language in the 2023 guidance to
address public comments that the Department's Task Force received. For
example, the Department has added the question ``Does the ADA require
an individual with a disability to work in an integrated employment
setting or participate in integrated day services?'' in response to the
commenters who understood the 2016 guidance as requiring people to work
in integrated settings. The Department's answer to this new question
clarifies that individuals may decline to accept a service in the most
integrated setting appropriate for them. In addition to including this
new question, the Department included clarifying language throughout
the 2023 guidance to make that point clear. There were other individual
comments to which the Department declined to make changes in response.
For example, although one commenter objected to the concept of
``informed choice'' as it was described in the 2016 guidance, the
Department declined to omit from its 2023 guidance the concept of
``informed choice.'' The Department chose not to omit this concept
because the law requires that state and local governments provide
community-based services to individuals who are appropriate for and do
not oppose such services. In general, it would be difficult for a
person to meaningfully decide among various options without being aware
of all of the options. The Department has consistently taken the
position that public entities must take affirmative
[[Page 77614]]
steps to ensure that people with disabilities are provided information
about their service options before deciding where to receive
services.\6\
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\6\ See, e.g., Dep't of Just., ``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.'' (2011); Post-
Trial Conclusions of Law, United States v. Texas, No. 10-CV-1025
(W.D. Tex. Jan. 18, 2019) at 37-44; Post-Trial Br. in Supp. of Joint
Findings of Fact and Conclusions of Law, United States v. Texas, No.
5:10-CV-1025, (W.D. Tex. Jan. 18, 2019) at 21-25; Dep't of Just.,
Investigation of Glenwood and Woodward Res. Ctrs. (Dec. 8, 2021) at
11-18, 11 n.17; Letter from Kristen Clarke, Assistant Att'y Gen.,
Civ. Rts. Div., Dep't of Just. to Governor Jared Polis (Mar. 3,
2022).
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Second, the Department took numerous steps to ensure the document's
readability and reduce redundancy. For example, the Department omitted
the question ``What is an Olmstead Plan in the public employment
service system context?'' because it repeated content that the
Department has already detailed in its guidance document on the
integration mandate and Olmstead that was issued in 2011.\7\ In
addition, we have received user feedback from the public asking the
Department to use more plain language and to streamline the content of
our guidance documents so that they are easier for lay users to read
and understand. We made numerous edits throughout the 2023 guidance
with that user feedback in mind.
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\7\ See Dep't of Just., ``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.'' (2011),
<a href="https://www.ada.gov/olmstead/q&a_olmstead.htm">https://www.ada.gov/olmstead/q&a_olmstead.htm</a>.
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Third, the Department sought to enhance legal precision throughout
the document. For example, we included the question, ``What is the
fundamental alteration defense,'' to ensure that the 2023 guidance
addresses elements of proof as well as limitations on the obligation to
comply with the law.
The Department's 2023 guidance is being issued consistent with the
Attorney General's July 1, 2021 memorandum entitled ``Issuance and Use
of Guidance Documents by the Department of Justice.'' \8\ The guidance
is available on the Department's website at <a href="https://www.ada.gov/resources/olmstead-employment-qa/">https://www.ada.gov/resources/olmstead-employment-qa/</a> and the Department's guidance portal
at <a href="https://www.justice.gov/guidance">https://www.justice.gov/guidance</a>.
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\8\ See Mem. of the Attorney General, ``Issuance and Use of
Guidance Documents by the Department of Justice'' (July 1, 2021),
<a href="https://www.justice.gov/opa/page/file/1408606/download">https://www.justice.gov/opa/page/file/1408606/download</a>.
Dated: October 30, 2023.
Kristen Clarke,
Assistant Attorney General, Civil Rights Division.
[FR Doc. 2023-24989 Filed 11-9-23; 8:45 am]
BILLING CODE 4410-13-P
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