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Statement of the Department of Justice on the Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Omstead v. L.C., U.S. Department of Justice, 2011

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U.S. Department of Justice
Civil Rights Division

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.
In the years since the Supreme Court’s decision in Olmstead v. L.C., 527 U.S. 581
(1999), the goal of the integration mandate in title II of the Americans with Disabilities Act – to
provide individuals with disabilities opportunities to live their lives like individuals without
disabilities – has yet to be fully realized. Some state and local governments have begun
providing more integrated community alternatives to individuals in or at risk of segregation in
institutions or other segregated settings. Yet many people who could and want to live, work, and
receive services in integrated settings are still waiting for the promise of Olmstead to be fulfilled.
In 2009, on the tenth anniversary of the Supreme Court’s decision in Olmstead, President
Obama launched “The Year of Community Living” and directed federal agencies to vigorously
enforce the civil rights of Americans with disabilities. Since then, the Department of Justice has
made enforcement of Olmstead a top priority. As we commemorate the 12th anniversary of the
Olmstead decision, the Department of Justice reaffirms its commitment to vindicate the right of
individuals with disabilities to live integrated lives under the ADA and Olmstead. To assist
individuals in understanding their rights under title II of the ADA and its integration mandate,
and to assist state and local governments in complying with the ADA, the Department of Justice
has created this technical assistance guide.

The ADA and Its Integration Mandate
In 1990, Congress enacted the landmark Americans with Disabilities Act “to provide a
clear and comprehensive national mandate for the elimination of discrimination against
individuals with disabilities.”1 In passing this groundbreaking law, Congress recognized that
“historically, society has tended to isolate and segregate individuals with disabilities, and, despite
some improvements, such forms of discrimination against individuals with disabilities continue
to be a serious and pervasive social problem.”2 For those reasons, Congress prohibited
discrimination against individuals with disabilities by public entities:
[N]o 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,






























































1
2

42 U.S.C. § 12101(b)(1).
42 U.S.C. § 12101(a)(2).
1




or activities of a public entity, or be subjected to discrimination by any such
entity.3
As directed by Congress, the Attorney General issued regulations implementing title II,
which are based on regulations issued under section 504 of the Rehabilitation Act.4 The title II
regulations require public entities to “administer services, programs, and activities in the most
integrated setting appropriate to the needs of qualified individuals with disabilities.”5 The
preamble discussion of the “integration regulation” explains that “the most integrated setting” is
one that “enables individuals with disabilities to interact with nondisabled persons to the fullest
extent possible . . . .”6
In Olmstead v. L.C., 527 U.S. 581 (1999), the Supreme Court held that title II prohibits
the unjustified segregation of individuals with disabilities. The Supreme Court held that public
entities are required to provide community-based services to persons with disabilities when (a)
such services are appropriate; (b) the affected persons do not oppose community-based
treatment; and (c) community-based services can be reasonably accommodated, taking into
account the resources available to the entity and the needs of others who are receiving disability
services from the entity.7 The Supreme Court explained that this holding “reflects two evident
judgments.” First, “institutional placement of persons who can handle and benefit from
community settings perpetuates unwarranted assumptions that persons so isolated are incapable
or unworthy of participating in community life.” Second, “confinement in an institution severely
diminishes the everyday life activities of individuals, including family relations, social contacts,
work options, economic independence, educational advancement, and cultural enrichment.”8
To comply with the ADA’s integration mandate, public entities must reasonably modify
their policies, procedures or practices when necessary to avoid discrimination.9 The obligation
to make reasonable modifications may be excused only where the public entity demonstrates that
the requested modifications would “fundamentally alter” its service system.10































































3

42 U.S.C. § 12132.

4

See 42 U.S.C. § 12134(a); 28 C.F.R. § 35.190(a); Executive Order 12250, 45 Fed. Reg. 72995
(1980), reprinted in 42 U.S.C. § 2000d-1. Section 504 of the Rehabilitation Act of 1973
similarly prohibits disability-based discrimination. 29 U.S.C § 794(a) (“No otherwise qualified
individual with a disability . . . shall, solely by reason of her or his disability, be excluded from
the participation in, be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance . . . .”). Claims under the ADA and the
Rehabilitation Act are generally treated identically.
5
28 C.F.R. § 35.130(d) (the “integration mandate”).
6
28 C.F.R. Pt. 35, App. A (2010) (addressing § 35.130).
7
Olmstead v. L.C., 527 U.S. at 607.
8
Id. at 600-01.
9
28 C.F.R. § 35.130(b)(7).
10
Id.; see also Olmstead, 527 U.S. at 604-07.
2



In the years since the passage of the ADA and the Supreme Court’s decision in Olmstead,
the ADA’s integration mandate has been applied in a wide variety of contexts and has been the
subject of substantial litigation. The Department of Justice has created this technical assistance
guide to assist individuals in understanding their rights and public entities in understanding their
obligations under the ADA and Olmstead. This guide catalogs and explains the positions the
Department of Justice has taken in its Olmstead enforcement. It reflects the views of the
Department of Justice only. For questions about this guide, you may contact our ADA
Information Line, 800-514-0301 (voice), 800-514-0383 (TTY).
Date: June 22, 2011

Questions and Answers on the
ADA’s Integration Mandate and Olmstead Enforcement
1. What is the most integrated setting under the ADA and Olmstead?
The “most integrated setting” is defined as “a setting that enables individuals with disabilities to
interact with non-disabled persons to the fullest extent possible.”11 Integrated settings are those
that provide individuals with disabilities opportunities to live, work, and receive services in the
greater community, like individuals without disabilities. Integrated settings are located in
mainstream society; offer access to community activities and opportunities at times, frequencies
and with persons of an individual’s choosing; afford individuals choice in their daily life
activities; and, provide individuals with disabilities the opportunity to interact with non-disabled
persons to the fullest extent possible. Evidence-based practices that provide scattered-site
housing with supportive services are examples of integrated settings. By contrast, segregated
settings often have qualities of an institutional nature. Segregated settings include, but are not
limited to: (1) congregate settings populated exclusively or primarily with individuals with
disabilities; (2) congregate settings characterized by regimentation in daily activities, lack of
privacy or autonomy, policies limiting visitors, or limits on individuals’ ability to engage freely
in community activities and to manage their own activities of daily living; or (3) settings that
provide for daytime activities primarily with other individuals with disabilities.

2. When is the ADA’s integration mandate implicated?
The ADA’s integration mandate is implicated where a public entity administers its programs in a
manner that results in unjustified segregation of persons with disabilities. More specifically, a
public entity may violate the ADA’s integration mandate when it: (1) directly or indirectly
operates facilities and or/programs that segregate individuals with disabilities; (2) finances the
segregation of individuals with disabilities in private facilities; and/or (3) through its planning,
service system design, funding choices, or service implementation practices, promotes or relies
upon the segregation of individuals with disabilities in private facilities or programs.12






























































11

28 C.F.R. pt. 35 app. A (2010).
See 28 C.F.R. § 35.130(b)(1) (prohibiting a public entity from discriminating “directly or
through contractual, licensing or other arrangements, on the basis of disability”); § 35.130(b)(3)
12

3



3. Does a violation of the ADA’s integration mandate require a showing of
facial discrimination?
No, in the Olmstead context, an individual is not required to prove facial discrimination. In
Olmstead, the court held that the plaintiffs could make out a case under the integration mandate
even if they could not prove “but for” their disability, they would have received the communitybased services they sought. It was enough that the state currently provided them services in an
institutional setting that was not the most integrated setting appropriate.13 Additionally, an
Olmstead claim is distinct from a claim of disparate treatment or disparate impact and
accordingly does not require proof of those forms of discrimination.

4. What evidence may an individual rely on to establish that an integrated
setting is appropriate?
An individual may rely on a variety of forms of evidence to establish that an integrated setting is
appropriate. A reasonable, objective assessment by a public entity’s treating professional is one,
but only one, such avenue. Such assessments must identify individuals’ needs and the services
and supports necessary for them to succeed in an integrated setting. Professionals involved in
the assessments must be knowledgeable about the range of supports and services available in the
community. However, the ADA and its regulations do not require an individual to have had a
state treating professional make such a determination. People with disabilities can also present
their own independent evidence of the appropriateness of an integrated setting, including, for
example, that individuals with similar needs are living, working and receiving services in
integrated settings with appropriate supports. This evidence may come from their own treatment
providers, from community-based organizations that provide services to people with disabilities
outside of institutional settings, or from any other relevant source. Limiting the evidence on
which Olmstead plaintiffs may rely would enable public entities to circumvent their Olmstead
requirements by failing to require professionals to make recommendations regarding the ability
of individuals to be served in more integrated settings.

5. What factors are relevant in determining whether an individual does not
oppose an integrated setting?
Individuals must be provided the opportunity to make an informed decision. Individuals who
have been institutionalized and segregated have often been repeatedly told that they are not
capable of successful community living and have been given very little information, if any, about
how they could successfully live in integrated settings. As a result, individuals’ and their
families’ initial response when offered integrated options may be reluctance or hesitancy. Public
entities must take affirmative steps to remedy this history of segregation and prejudice in order to
ensure that individuals have an opportunity to make an informed choice. Such steps include
providing information about the benefits of integrated settings; facilitating visits or other
experiences in such settings; and offering opportunities to meet with other individuals with
disabilities who are living, working and receiving services in integrated settings, with their






































































































































































































(prohibiting a public entity from “directly, or through contractual or other arrangements, utilizing
criteria or methods of administration” that have the effect of discriminating on the basis of
disability”).
13
Olmstead, 527 U.S. at 598; 28 C.F.R. 35.130(d).
4



families, and with community providers. Public entities also must make reasonable efforts to
identify and addresses any concerns or objections raised by the individual or another relevant
decision-maker.

6. Do the ADA and Olmstead apply to persons at serious risk of
institutionalization or segregation?
Yes, the ADA and the Olmstead decision extend to persons at serious risk of institutionalization
or segregation and are not limited to individuals currently in institutional or other segregated
settings. Individuals need not wait until the harm of institutionalization or segregation occurs or
is imminent. For example, a plaintiff could show sufficient risk of institutionalization to make
out an Olmstead violation if a public entity’s failure to provide community services or its cut to
such services will likely cause a decline in health, safety, or welfare that would lead to the
individual’s eventual placement in an institution.

7. May the ADA and Olmstead require states to provide additional services,
or services to additional individuals, than are provided for in their Medicaid
programs?
A state’s obligations under the ADA are independent from the requirements of the Medicaid
program.14 Providing services beyond what a state currently provides under Medicaid may not
cause a fundamental alteration, and the ADA may require states to provide those services, under
certain circumstances. For example, the fact that a state is permitted to “cap” the number of
individuals it serves in a particular waiver program under the Medicaid Act does not exempt the
state from serving additional people in the community to comply with the ADA or other laws,
for example by seeking a modification of the waiver to remove the cap.15

8. Do the ADA and Olmstead require a public entity to provide services in
the community to persons with disabilities when it would otherwise provide
such services in institutions?
Yes. Public entities cannot avoid their obligations under the ADA and Olmstead by
characterizing as a “new service” services that they currently offer only in institutional settings.
The ADA regulations make clear that where a public entity operates a program or provides a
service, it cannot discriminate against individuals with disabilities in the provision of those
services.16 Once public entities choose to provide certain services, they must do so in a
nondiscriminatory fashion.17

9. Can budget cuts violate the ADA and Olmstead?
Yes, budget cuts can violate the ADA and Olmstead when significant funding cuts to community
services create a risk of institutionalization or segregation. The most obvious example of such a






























































14

See CMS, Olmstead Update No. 4, at 4 (Jan. 10, 2001), available at
https://www.cms.gov/smdl/downloads/smd011001a.pdf.
15
Id.
16
28 C.F.R. § 35.130.
17
See U.S. Dept. of Justice, ADA Title II Technical Assistance Manual § II-3.6200.
5



risk is where budget cuts require the elimination or reduction of community services specifically
designed for individuals who would be institutionalized without such services. In making such
budget cuts, public entities have a duty to take all reasonable steps to avoid placing individuals at
risk of institutionalization. For example, public entities may be required to make exceptions to
the service reductions or to provide alternative services to individuals who would be forced into
institutions as a result of the cuts. If providing alternative services, public entities must ensure
that those services are actually available and that individuals can actually secure them to avoid
institutionalization.

10. What is the fundamental alteration defense?
A public entity’s obligation under Olmstead to provide services in the most integrated setting is
not unlimited. A public entity may be excused in instances where it can prove that the requested
modification would result in a “fundamental alteration” of the public entity’s service system. A
fundamental alteration requires the public entity to prove “that, in the allocation of available
resources, immediate relief for plaintiffs would be inequitable, given the responsibility the State
[or local government] has taken for the care and treatment of a large and diverse population of
persons with [ ] disabilities.”18 It is the public entity’s burden to establish that the requested
modification would fundamentally alter its service system.

11. What budgetary resources and costs are relevant to determine if the
relief sought would constitute a fundamental alteration?
The relevant resources for purposes of evaluating a fundamental alteration defense consist of all
money the public entity allots, spends, receives, or could receive if it applied for available federal
funding to provide services to persons with disabilities. Similarly, all relevant costs, not simply
those funded by the single agency that operates or funds the segregated or integrated setting,
must be considered in a fundamental alteration analysis. Moreover, cost comparisons need not
be static or fixed. If the cost of the segregated setting will likely increase, for instance due to
maintenance, capital expenses, environmental modifications, addressing substandard care, or
providing required services that have been denied, these incremental costs should be
incorporated into the calculation. Similarly, if the cost of providing integrated services is likely
to decrease over time, for instance due to enhanced independence or decreased support needs,
this reduction should be incorporated as well. In determining whether a service would be so
expensive as to constitute a fundamental alteration, the fact that there may be transitional costs of
converting from segregated to integrated settings can be considered, but it is not determinative.
However, if a public entity decides to serve new individuals in segregated settings
(“backfilling”), rather than to close or downsize the segregated settings as individuals in the
plaintiff class move to integrated settings, the costs associated with that decision should not be
included in the fundamental alteration analysis.

12. What is an Olmstead Plan?
An Olmstead plan is a public entity’s plan for implementing its obligation to provide individuals
with disabilities opportunities to live, work, and be served in integrated settings. A
comprehensive, effectively working plan must do more than provide vague assurances of future






























































18

Olmstead, 527 U.S. at 604.
6




integrated options or describe the entity’s general history of increased funding for community
services and decreased institutional populations. Instead, it must reflect an analysis of the extent
to which the public entity is providing services in the most integrated setting and must contain
concrete and reliable commitments to expand integrated opportunities. The plan must have
specific and reasonable timeframes and measurable goals for which the public entity may be held
accountable, and there must be funding to support the plan, which may come from reallocating
existing service dollars. The plan should include commitments for each group of persons who
are unnecessarily segregated, such as individuals residing in facilities for individuals with
developmental disabilities, psychiatric hospitals, nursing homes and board and care homes, or
individuals spending their days in sheltered workshops or segregated day programs. To be
effective, the plan must have demonstrated success in actually moving individuals to integrated
settings in accordance with the plan. A public entity cannot rely on its Olmstead plan as part of
its defense unless it can prove that its plan comprehensively and effectively addresses the
needless segregation of the group at issue in the case. Any plan should be evaluated in light of
the length of time that has passed since the Supreme Court’s decision in Olmstead, including a
fact-specific inquiry into what the public entity could have accomplished in the past and what it
could accomplish in the future.

13. Can a public entity raise a viable fundamental alteration defense
without having implemented an Olmstead plan?
The Department of Justice has interpreted the ADA and its implementing regulations to
generally require an Olmstead plan as a prerequisite to raising a fundamental alteration defense,
particularly in cases involving individuals currently in institutions or on waitlists for services in
the community. In order to raise a fundamental alteration defense, a public entity must first
show that it has developed a comprehensive, effectively working Olmstead plan that meets the
standards described above. The public entity must also prove that it is implementing the plan in
order to avail itself of the fundamental alteration defense. A public entity that cannot show it has
and is implementing a working plan will not be able to prove that it is already making sufficient
progress in complying with the integration mandate and that the requested relief would so disrupt
the implementation of the plan as to cause a fundamental alteration.

14. What is the relevance of budgetary shortages to a fundamental
alteration defense?
Public entities have the burden to show that immediate relief to the plaintiffs would effect a
fundamental alteration of their program. Budgetary shortages are not, in and of themselves,
evidence that such relief would constitute a fundamental alteration. Even in times of budgetary
constraints, public entities can often reasonably modify their programs by re-allocating funding
from expensive segregated settings to cost-effective integrated settings. Whether the public
entity has sought additional federal resources available to support the provision of services in
integrated settings for the particular group or individual requesting the modification – such as
Medicaid, Money Follows the Person grants, and federal housing vouchers – is also relevant to a
budgetary defense.

7



15. What types of remedies address violations of the ADA’s integration
mandate?
A wide range of remedies may be appropriate to address violations of the ADA and Olmstead,
depending on the nature of the violations. Remedies typically require the public entity to expand
the capacity of community-based alternatives by a specific amount, over a set period of time.
Remedies should focus on expanding the most integrated alternatives. For example, in cases
involving residential segregation in institutions or large congregate facilities, remedies should
provide individuals opportunities to live in their own apartments or family homes, with necessary
supports. Remedies should also focus on expanding the services and supports necessary for
individuals’ successful community tenure. Olmstead remedies should include, depending on the
population at issue: supported housing, Home and Community Based Services (“HCBS”)
waivers,19 crisis services, Assertive Community Treatment (“ACT”) teams, case management,
respite, personal care services, peer support services, and supported employment. In addition,
court orders and settlement agreements have typically required public entities to implement a
process to ensure that currently segregated individuals are provided information about the
alternatives to which they are entitled under the agreement, given opportunities that will allow
them to make informed decisions about their options (such as visiting community placements or
programs, speaking with community providers, and meeting with peers and other families), and
that transition plans are developed and implemented when individuals choose more integrated
settings.

16. Can the ADA’s integration mandate be enforced through a private right
of action?
Yes, private individuals may file a lawsuit for violation of the ADA’s integration mandate. A
private right of action lies to enforce a regulation that authoritatively construes a statute. The
Supreme Court in Olmstead clarified that unnecessary institutionalization constitutes
“discrimination” under the ADA, consistent with the Department of Justice integration
regulation.

17. What is the role of protection and advocacy organizations in enforcing
Olmstead?
By statute, Congress has created an independent protection and advocacy system (P&As) to
protect the rights of and advocate for individuals with disabilities.20 Congress gave P&As
certain powers, including the authority to investigate incidents of abuse, neglect and other rights
violations; access to individuals, records, and facilities; and the authority to pursue legal,






























































19

HCBS waivers may cover a range of services, including residential supports, supported
employment, respite, personal care, skilled nursing, crisis services, assistive technology, supplies
and equipment, and environmental modifications.
20
42 U.S.C. §§ 15001 et seq. (Developmental Disabilities Assistance and Bill of Rights Act,
requiring the establishment of the P&A system to protect and advocate for individuals with
developmental disabilities); 42 U.S.C. § 10801 et seq. (The Protection and Advocacy for
Individuals with Mental Illness Act, expanding the mission of the P&A to include protecting and
advocating for individuals with mental illness)
8



administrative or other remedies on behalf of individuals with disabilities.21 P&As have played a
central role in ensuring that the rights of individuals with disabilities are protected, including
individuals’ rights under title II’s integration mandate. The Department of Justice has supported
the standing of P&As to litigate Olmstead cases.


18. Can someone file a complaint with the Department of Justice regarding
a violation of the ADA and Olmstead?
Yes, individuals can file complaints about violations of title II and Olmstead with the
Department of Justice. A title II complaint form is available on-line at www.ada.gov and can be
sent to:
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Avenue, NW
Disability Rights Section – NYAV
Washington, DC 20530
Individuals may also call the Department’s toll-free ADA Information Line for information
about filing a complaint and to order forms and other materials that can assist you in providing
information about the violation. The number for the ADA Information Line is
(800) 514-0301 (voice) or (800) 514-0383 (TTY).
In addition, individuals may file a complaint about violations of Olmstead with the Office for
Civil Rights at the U.S. Department of Health and Human Services. Instructions on filing a
complaint with OCR are available at http://www.hhs.gov/ocr/civilrights/complaints/index.html.































































21

42 U.S.C. §§ 10805, 15043.
9

 

 

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