The Trials & Tribulations of Executive Agency Guidance 

Olmstead Measurable Goals --- Title II of the ADA & Caselaw

​The US Department of Justice (DOJ) under the Trump Administration rescinded a number of pieces of Executive Agency Guidance.
  • It didn't rescind the 2011 DOJ Statement on Olmstead.
  • On the other hand, seemingly on Feb. 25, 2020 --- DOJ put the controversy regarding Executive Agency Guidance into HIGH RELIEF by adding to the Statement that the Olmstead Statement didn't have any effect outside STATUTE, REGULATION AND BINDING PRECEDENT.
 
  • It's NOT CLEAR that changed anything ---- especially given all the controversy around Executive Agency Guidance.  [NOTE:  I haven't scrupulously gone through this updated STATEMENT.]
 
  • REGULATORY RULEMAKING does have some NOTICE & OPPORTUNITY TO COMMENT ---- unlike Executive Agency Guidance.
    • ​We need Federal Executive Rulemaking around Olmstead and Olmstead Plans. 
42 U.S. Code § 12132.  
​Discrimination

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

(Pub. L. 101–336, title II, § 202, July 26, 1990, 104 Stat. 337.)
​Binding precedent is a legal rule or principle, articulated by an appellate court, that must be followed by lower courts within its jurisdiction. Essentially, once an appellate court reviews a case, it will deliver a written opinion.

binding precedent | Wex | US Law | LII / Legal Information ..
Integration Mandate
28 C.F.R. § 35.130(d)

(d) A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.
Caselaw on "Measurable Goals"
Picture
Photo Credit: Olmsteadrights.org
Measurable Goals and DOJ Settlement Agreements
(settlement agreements are generally not BINDING  PRECEDENT --- most Olmstead Cases involve settlement agreements)

Search on ada.gov:  Measurable Goals Olmstead
It's important to remember how much JUDICIAL RESTRAINT was exercised by the US Supreme Court in the Olmstead Decision.

Back in 1999, the litigants were patients at a Georgia Mental Health Facility and were identified as people with mental illness and developmental disabilities.

The doctors at the mental health facility said the individuals were able to live in the community with housing and supports --- but Georgia wasn't offering that or not at a sufficient scale.

The patients through their attorneys ---- Georgia Legal Aid---- raised a number of legal claims, including Constitutional Claims.

The Supreme Court concluded that it didn't need to decide the case on Constitutional Grounds BECAUSE it could decide the case on STATUTORY & REGULATORY GROUNDS:
  • Title II of the ADA, and
  • The Integration Mandate

The Supreme Court held that UNNECESSARY SEGREGATION of PEOPLE WITH DISABILITIES VIOLATED TITLE II of the ADA and the INTEGRATION MANDATE ------

BUT

If States have a "comprehensive and effectively working plan" and "waitlists moving at a reasonable pace" ---
​that's a defense to a case alleging unnecessary institutionalization of people with disabilities.

Now 20 years after this decision, there are:
  • Court Decisions
  • DOJ Findings Letters
  • Technical Assistance
  • Guidance

To serve as a basis for COMPREHENSIVE RULEMAKING.

It's hard to see how one could have a "comprehensive and effectively working plan" without:
  • MEASURABLE GOALS
  • REASONABLE TIME FRAMES, AND
  • FUNDING TO SUPPORT THE PLAN