[Federal Register Volume 88, Number 217 (Monday, November 13, 2023)]
[Notices]
[Pages 77612-77614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 
[email protected]. 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), https://www.ada.gov/withdrawn_olmstead.html.
    \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), 
https://www.ada.gov/olmstead/q&a_olmstead.htm.
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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 https://www.ada.gov/resources/olmstead-employment-qa/ and the Department's guidance portal 
at https://www.justice.gov/guidance.
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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), 
https://www.justice.gov/opa/page/file/1408606/download.

    Dated: October 30, 2023.
Kristen Clarke,
Assistant Attorney General, Civil Rights Division.
[FR Doc. 2023-24989 Filed 11-9-23; 8:45 am]
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