DOJ Withdraws Olmstead Employment Guidance

Advancing opportunities for people with disabilities to work at alongside co-workers without disabilities at real wages (known as competitive integrated employment) is a top priority in CPR’s policy and litigation work. Late December 2017, the Department of Justice (DOJ) rescinded guidance related to employment of people with disabilities.  The Collaboration to Promote Self Determination (for whom CPR is a policy advisor) and Consortium for Citizens with Disabilities CCD Rights Task Force (in which CPR is a member) quickly issued a statement and authored a letter to the DOJ expressing concern about the withdrawal of Olmstead Guidance. More than 200 disability organizations signed on.

Letter to DOJ in Response to Olmstead Guidance Withdrawal

Jan. 5, 2018
Hon. John Gore
Acting Assistant Attorney General for Civil Rights
U.S. Department of Justice
950 Pennsylvania Ave., NW
Washington, DC 20530

Dear Acting Assistant Attorney General Gore:

The undersigned members and allies of the Consortium for Citizens with Disabilities (CCD) and the Collaboration to Promote Self Determination (CPSD) write to express concern about the Justice Department’s recent withdrawal of a number of guidance and technical assistance documents concerning the Americans with Disabilities Act (ADA).  CCD is the largest coalition of national organizations working together to advocate for federal public policy that ensures the self-determination, independence, empowerment, integration, and inclusion of children and adults with disabilities in all aspects of society.  CPSD is a collaboration of national organizations representing people with disabilities and their family members advocating for major systemic reform of the nation’s disability laws and programs so people with disabilities can become employed, earn competitive wages, live independently in inclusive communities, and rise out of poverty.

On December 21, 2017, the Department rescinded its “Statement on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and local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,” as well as nine other ADA technical assistance documents.  The Statement, which was issued in 2016, described the obligations of states to administer their employment services for people with disabilities in the most integrated setting appropriate.  Evidence-based supported employment services help people with disabilities secure and maintain competitive, integrated employment.  They are critical to achieving the ADA’s goals of independent living and economic self-sufficiency.  The Statement reflected already established law in an area that is a top priority for the disability community – employment of people with disabilities.

We are extremely concerned about the withdrawal of this guidance document.  While as the Department notes, the withdrawal “does 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,” we are concerned that it sends the wrong signal to public entities and employment service providers about what is necessary to comply with the ADA’s integration mandate with respect to employment services.  Indeed, some groups have incorrectly described the withdrawal as eliminating the applicability of the integration mandate to employment services.  We are also concerned about whether the withdrawal of this guidance reflects a diminished concern by the Justice Department with ensuring that public entities provide employment services that allow people with disabilities to work in competitive integrated employment.

The vast majority of people with disabilities and their families want opportunities for competitive integrated employment.  Most employment service providers are working to change their business models away from sheltered work and other segregated settings to competitive integrated employment, and almost all states have embraced an “employment first” approach reflecting that shift.  The Department’s guidance was consistent with the priority the disability community has placed on enforcement of their civil right to work alongside and with the same conditions as their peers without disabilities.  We urge the Department to continue its commitment to expanding competitive integrated employment opportunities for all people with disabilities as a critical way to fulfill the ADA’s goals of integration, independence, and economic self-sufficiency.

We are also concerned about the process by which the Department announced that it was withdrawing nine other technical assistance documents relating to the ADA.  We were troubled to see so many documents suddenly withdrawn and removed from the Department’s website, with little explanation of the reasons for doing so.  Guidance documents are important tools to educate all stakeholders about the requirements of the law in a clear fashion, and the withdrawal of these guidance documents in this manner has created confusion and misunderstanding.

Government transparency is critically important.  If the Department plans to rescind, modify or replace any guidance or technical assistance documents in the future, we request that you ensure transparency and opportunities for public input in the process.  For example, we believe the Department should provide advanced public notice before withdrawing or modifying such guidance documents, and an opportunity for stakeholders to provide input.  If the Department is withdrawing a guidance document because it is out of date, it should explain the specific ways in which the document is outdated, and if it has been superseded by later guidance documents, the Department should explain that and provide a link to those later documents.  In addition, the Department should create an online archive of guidance documents that have been withdrawn or modified, so that the public can access those documents and understand what changes have been made and why.

Thank you for consideration of this very important matter.  We would welcome the opportunity to discuss our concerns further.  You can contact Jennifer Mathis, CCD Rights Task Force Co-chair (jenniferm@bazelon.org) or Alison Barkoff, CPSD Policy Advisor (abarkoff@cpr-us.org) with any questions or to follow up on our letter.

Sincerely,

Over 200 Organizations

 

Statement on Withdrawal of Justice Department Guidance on the ADA’s Integration Mandate and Employment Services

December 26, 2017

On December 21, the U.S. Department of Justice rescinded its Statement 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. The statement, which was issued last year, described the obligations of states to administer their employment services for people with disabilities in the most integrated setting appropriate. Evidence-based supported employment services help people with disabilities secure and maintain competitive, integrated employment. They are critical to achieving the ADA’s goals of independent living and economic self-sufficiency.

We are extremely concerned about the withdrawal of this guidance document, both because it sends the wrong signal to public entities that are seeking to comply with the ADA and because it may reflect a diminished concern with the importance of providing employment services in the most integrated setting. As the Justice Department notes, withdrawal of this guidance “does 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.” The Statement reflected already established law, and its withdrawal does nothing to change that law, existing settlement agreements, or prior Justice Department findings letters about the application of the ADA’s integration mandate and Olmstead to employment systems.

The vast majority of people with disabilities and their families want opportunities for competitive integrated employment. Most employment service providers, in response to best practices, federal law, and DOJ Guidance, are working to change their business models away from sheltered work to competitive integrated employment, and almost all states have embraced an “employment first” approach reflecting that shift. The Department’s guidance was consistent with the priority the disability community has placed on enforcement of their civil rights to work alongside and with the same conditions as their peers without disabilities.

We are committed to expanding opportunities for all people with disabilities to have opportunities to work alongside their non-disabled peers for competitive wages and fulfill the ADA’s goals of integration, independence and economic self-sufficiency. We urge the Justice Department to remain committed to these goals as well.

We are also concerned about the process by which the Department announced that it is withdrawing nine other technical assistance documents on the same day. While some of these documents were outdated, government transparency is critically important. We were concerned to see so many documents suddenly withdrawn with little explanation of the reasons for doing so. Guidance documents are important tools to educate all stakeholders about the requirements of the law in a clear fashion, and the withdrawal of some of these guidance documents may create confusion and misunderstanding.

The Consortium for Citizens with Disabilities (CCD) is the largest coalition of national organizations working together to advocate for federal public policy that ensures the self- determination, independence, empowerment, integration, and inclusion of children and adults with disabilities in all aspects of society. Contact for the CCD Rights Task Force is Jennifer Mathis, Bazelon Center for Mental Health Law, jenniferm@bazelon.org.

The Collaboration to Promote Self Determination (CPSD) is a collaboration of national organizations representing people with disabilities and their families committed to educating Congress and federal agencies about what people with disabilities need to rise out of poverty and live more independently. We advocate for major systemic reform of the nation’s disability laws and programs so people with disabilities can become employed, earn competitive wages, live independently in inclusive communities, and rise out of poverty. Contact for CPSD is Alison Barkoff, Center for Public Representation, abarkoff@cpr-us.org.