Appendix — Tennessee v. Lane

| Supreme Court, US

\ PILED

NOV 1 2 2003

No. 02-1667 OFFICE OF THE CLERK

In the Supreme Court of the Gnited States

STATE OF TENNESSEE, PETITIONER

Vv.

GEORGE LANE, ET AL.

= ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

APPENDIX TO THE

BRIEF FOR THE UNITED STATES

THEODORE B. OLSON

Solicitor General

R. ALEXANDER ACOSTA

Assistant Attorney General

PAUL D. CLEMENT

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

JESSICA DUNSAY SILVER

SARAH E. HARRINGTON

KEVIN RUSSELL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

TABLE OF CONTENTS

Appendix A (Cases Evidencing Unconstitutional

Treatment of Individuals with Disabilities) ............

Appendix B (Disabilities Act Enforcement

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Appendix C (Findings of Investigations Under

the Civil Rights of Institutionalized Persons

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Appendix D (Relevant Constitutional and

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APPENDIX A

Cases Evidencing Unconstitutional Treatment of

Individuals with Disabilities:

Foucha v. Louisiana, 504 U.S. 71 (1992) (Louisiana

statute allowing continued confinement of the mentally ill,

who were acquitted of crimes by reason of insanity, resulted

in unconstitutional confinement, in violation of the Due

Process Clause, where the hospital review committee had

reported no evidence of mental illness and recommended

conditional discharge); City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432 (1985) (unconstitutional zoning discrimina-

tion); Youngberg v. Romeo, 457 U.S. 307, 315, 322 (1982)

(institutionalized persons have due process “right to ade-

quate food, shelter, clothing, and medical care,” “safe condi-

tions,” and freedom from unreasonable physical restraint, as

well as to “such training as may be reasonable in light of [the

resident’s] liberty interests in safety and freedom from

unreasonable restraints”); O’Connor v. Donaldson, 422 U.S.

563 (1975) (unconstitutional confinement); Delano-Pyle v.

Victoria County, 302 F.3d 567, 575-576 (5th Cir. 2002) (af-

firming a jury verdict that included evidence of a police

officer giving a sobriety test and Miranda warnings to a deaf

plaintiff who could not understand him, and then arresting

the plaintiff), cert. denied, No. 02-1223, 2003 WL 545392 (Oct.

6, 2003); Kiman v. New Hampshire Dep't of Corrs., 301 F.3d

13, 15-16 (1st Cir. 2002) (disabled inmate stated Eighth

Amendment claims for denial of accommodations needed to

protect his health and safety due to his degenerative nerve

disease), aff’d by an equally divided court, 332 F.3d 29 (2003)

(en banc); MX Group, Inc. v. City of Covington, 293 F.3d

326, 345 (6th Cir. 2002) (“blanket prohibition of all metha-

(1)

2a

done clinics from the entire city is discriminatory on its

face”); Popovich v. Cuyahoga County Ct. of Common Pleas,

276 F.3d 808 (6th Cir.) (en banc) (deaf parent denied com-

munication assistance in child custody proceeding), cert.

denied, 537 U.S. 812 (2002); Armstrong v. Davis, 275 F.3d

849 (9th Cir. 2001) (failure to conduct parole and parole

revocation proceedings in a manner that disabled inmates

can understand and in which they can participate), cert.

denied, 537 U.S. 812 (2002); Baird v. Rose, 192 F.3d 462 (4th

Cir. 1999) (seventh-grader suffering from clinical depression

prohibited from singing in school choir); Key v. Grayson, 179

F.3d 996 (6th Cir. 1999) (deaf inmate denied access to sex

offender program required as precondition for parole), cert.

denied, 528 U.S. 1120 (2000); Bradley v. Puckett, 157 F.3d

1022, 1025-1026 (5th Cir. 1998) (failure for several months to

provide means for amputee inmate to bathe led to infection);

Gorman v. Easley, 257 F.3d 738, 742 (8th Cir. 2001)

(paraplegic arrested for trespass improperly restrained in

non-wheelchair-accessible police van, causing his urine bag

to burst, “soaking him with his own urine” and resulting in

serious medical problems), judgment rev’d in part on

grounds not relevant, 536 U.S. is] (2002); Layton v. Elder,

143 F.3d 469, 470-472 (8th Cir. 1998) (mobility-impaired

veterans’ exclusion from a session of county quorum court

and from courtroom due to their inability to access the

second floor of the county courthouse); Innovative Health

Sys., Inc. v. City of White Plains, 117 F.3d 37, 49 (2d Cir.

1997) (building permit denied for drug and alcohol treatment

center “based on stereotypes and unsupported fears”); Love

v. Westville Corr. Ctr., 103 F.3d 558, 558, 560-561 (7th Cir.

1996) (quadriplegic inmate “was unable to participate in sub-

stance abuse, education, church, work, or transition pro-

3a

grams available to members of the general inmate popula-

tion” due to “intentional discrimination”); Koehl v. Dalsheim,

85 F.3d 86 (2d Cir. 1996) (Eighth Amendment violated when

inmate with serious vision problem denied glasses and

treatment); Weeks v. Chaboudy, 984 F.2d 185, 187 (6th Cir.

1993) (“squalor in which [prisoner] was forced to live as a

result of being denied a wheelchair” violated the Eighth

Amendment); Thomas S. v. Flaherty, 902 F.2d 250 (4th Cir.)

(unconstitutional confinement when appropriate community

placement available), cert. denied, 498 U.S. 951 (1990); Leach

v. Shelby County Sheriff, 891 F.2d 1241, 1243-1244 (6th Cir.

1989) (finding a policy or custom of deliberate indifference to

serious medical needs of paraplegic inmates; evidence

showed that, “[dJespite his medical need for cleanliness, [an

inmate] was not bathed for several days,” “was forced to

remain for long periods of time in his own urine due to

inadequate catheter supplies and was given inadequate aid

_for his bowel training needs despite his repeated requests

for help”), cert. denied, 495 U.S. 932 (1990); Chalk v. United

States Dist. Ct. Cent. Dist. of Cal., 840 F.2d 701 (9th Cir.

1988) (certified teacher barred from teaching after diagnosis

of AIDS); LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987)

(Powell, J.) (failure to provide paraplegic inmate with an

accessible toilet is cruel and unusual punishment); Parrish v.

Johnson, 800 F.2d 600, 603, 605 (6th Cir. 1986) (prison guard

repeatedly assaulted paraplegic inmates with a knife, forced

them to sit in their own feces, and taunted them with

remarks like “crippled bastard” and “[you] should be dead”);

Clark v. Cohen, 794 F.2d 79 (3d Cir.) (unconstitutional con-

finement), cert. denied, 479 U.S. 962 (1986); Miranda v.

Munoz, 770 F.2d 255, 259 (1st Cir. 1985) (failure to provide

medications for epilepsy, which caused prisoner’s death,

4a

violated Eighth Amendment); Lynch v. Baxley, 744 F.2d

1452 (11th Cir. 1984) (State subjected individuals awaiting

civil commitment proceedings to unconstitutional conditions

of confinement in county jails); Pomerantz v. Los Angeles

County, 674 F.2d 1288, 1289 (9th Cir. 1982) (“undisputed

facts show that the Los Angeles County Jury Commissioner,

and other employees directly involved in the jury selection

process for the Superior Court for the County of Los

Angeles had, prior to January 1, 1978, excluded all blind

persons from jury service solely because they were blind”);

Pushkin v. Regents of Univ. of Colo., 658 F.2d 1372 (10th

Cir. 1981) (doctor with multiple sclerosis unconstitutionally

denied residency out of concern about patients’ reactions);

Ferrell v. Estelle, 568 F.2d 1128, 1133 (5th Cir.) (deaf habeas

petitioner’s “rights were reduced below the constitutional

minimum” because he could not understand his trial), with-

drawn due to death of petitioner, 573 F.2d 867 (1978);

Gurmankin v. Costanzo, 556 F.2d 184 (3d Cir. 1977) (holding

unconstitutional an irrebuttable presumption that blind

teacher cannot instruct sighted students); Wyatt v. Aderholt,

503 F.2d 1305 (5th Cir. 1974) (unconstitutional conditions of

confinement for the mentally ill); Pathways Psychosocial v.

Town of Leonardtown, 133 F. Supp.-2d 772, 791-792 (D. Md.

2001) (denying summary judgment for defendants on claim

that town officials violated Equal Protection Clause through

zoning decisions that excluded a home for individuals with

mental retardation), after judgment, 223 F. Supp. 2d 699,

704-705 (2002) (jury found constitutional violation, and mo-

tion for new trial was denied); McCray v. City of Dothan,

169 F. Supp. 2d 1260, 1279-1280 (M.D. Ala. 2001) (police offi-

cer had “not articulated any specific facts upon which suspi-

cion reasonably could be founded” other than “the com-

5a

munication gap between a deaf man and herself”), aff’d in

part & rev'd in part, No. 01-15756, 2003 WL 21067092 (11th

Cir. Apr. 24, 2003) (Table); M.H. v. Bristol Bd. of Educ., 169

- F. Supp. 2d 21, 24-25 (D. Conn. 2001) (possible substantive

due process violation where school employees spat water in

disabled student’s face and restrained him so forcibly as to

result in bruising); Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me.

2001) (unconstitutional restriction on voting by those with

mental disabilities); Project Life, Inc. v. Glendening, 139 F.

Supp. 2d 703, 705 (D. Md. 2001) (unlawful rejection of permit

for drug treatment facility based on “community preju-

dices”), aff’d, No. 01-1754, 2002 WL 2012545 (4th Cir. Sept. 4,

2002); Salcido ex rel. Gilliland v. Woodbury County, 119 F.

Supp. 2d 900, 931 (N.D. lowa 2000) (granting summary judg-

ment for mentally ill plaintiff on claim that he was denied

due process by State’s denial of an appropriate institutional

placement without notice or hearing); New York v. County of

Schoharie, 82 F. Supp. 2d 19 (N.D.N.Y. 2000) (inaccessible

polling places); New York v. County of Delaware, 82 F. Supp.

2d 12 (N.D.N.Y. 2000) (inaccessible polling places); Schmidt

v. Odell, 64 F. Supp. 2d 1014 (D. Kan. 1999) (amputee forced

to crawl around jail, resulting in injury and infection, in

violation of Eighth Amendment); Matthews v. Jefferson, 29

F. Supp. 2d 525 (W.D. Ark. 1998) (paraplegic litigant had to

be carried up stairs to court room for all-day hearing at

which he could not leave to get food or use the restroom to

empty catheter, resulting in infection; eventually had to

crawl down steps to get out after everyone left the court-

house without him); Hanson v. Sangamon County Sheriff's

Dep't, 991 F. Supp. 1059, 1061-1062 (C.D. Ill. 1998) (possible

constitutional violation where deaf arrestee was denied the

opportunity to post bond and make a telephone call because

6a

the police department failed to provide, despite his requests,

alternatives to the conventional telephone, and that denial

resulted in much longer detention than other, similarly

situated arrestees); Lewis v. Truitt, 960 F. Supp. 175 (S.D.

Ind. 1997) (Fourth Amendment prohibits use of force against

an individual, whom officers know to be deaf, for not comply-

ing with officers’ spoken commands); Carty v. Farrelly, 957

F. Supp. 727, 739 (D.V.I. 1997) (“The abominable treatment

of the mentally ill inmates shows overwhelmingly that defen-

dants subject inmates to dehumanizing conditions punishable

under the Eighth Amendment.”); Kaufman v. Carter, 952 F.

Supp. 520 (W.D. Mich. 1996) (amputee hospitalized after fall

in inaccessible jail shower); Bullock v. Gomez, 929 F. Supp.

1299, 1301, 1307 (C.D. Cal. 1996) (possible constitutional

violation where California Department of Corrections’ family

visiting program precluded HIV-positive inmates from

having the same overnight visits with spouses afforded other

inmates, even where spouse was also HIV positive and

incapable of bearing children); Clarkson v. Coughlin, 898 F.

Supp. 1019, 1049 (S.D.N.Y. 1995) (holding, inter alia, that

state prison officials’ failure to provide interpreters or other

assistive services to deaf and hearing impaired inmates

during medical treatment violated the Eighth Amendment,

as at least two such inmates experienced improper and

possibly harmful treatment through provision of medical

treatment in absence of qualified interpreters); Stillwell v.

Kansas City, Mo. Bd. of Police Comm'rs, 872 F. Supp. 682,

688 (W.D. Mo. 1995) (holding that the Board of Police Com-

missioners’ licensing scheme violates the Due Process Clause

of the Fourteenth Amendment because it irrebuttably pre-

sumes that an individual with only one hand is unqualified

for the position of armed security guard); Harrelson v.

7a

Elmore County, 859 F. Supp. 1465, 1466 (M.D. Ala. 1994)

(paraplegic prisoner denied use of a wheelchair and forced to

craw] around his cell); Eric L. v. Bird, 848 F. Supp. 303, 306,

308 (D.N.H. 1994) (possible constitutional violation where

children with disabilities in foster care alleged that the State

failed “to take the required measures to maintain the integ-

rity of plaintiffs’ families where possible, to reunite removed

children with their families as soon as possible, or to place

them in secure, permanent homes within an appropriate time

and in an appropriate manner,” as well as failed “to provide

services necessary to protect children in the class from

harm”); T.E.P. v. Leavitt, 840 F. Supp. 110 (D. Utah 1993)

(statute prohibiting and voiding marriages between indivi-

duals with AIDS); Noland v. Wheatley, 835 F. Supp. 476,

480-482 (N.D. Ind. 1993) (possible constitutional violation

where semi-quadriplegic inmate confined to a wheelchair

was confined to secluded padded cell for months, denied

sufficient water to maintain kidney functioning or to permit

sanitary handling of colostomy and urostomy bag, forcing

him to “eat many meals with the human waste still on his

hands,” and was unable to sleep in bed because his wheel-

chair could not fit through the doorway, all resulting in

adverse medical conditions); Casey v. Lewis, 834 F. Supp.

1569, 1582-1583 (D. Ariz. 1993) (holding that prison’s failure

to provide accessible bathrooms, showers, and cells to

mobility-impaired inmates, as well as a consistent pattern of

delays in prisoner receipt of hearing aids, violated the -

Eighth Amendment); Galloway v. Superior Court, 816 F.

Supp. 12 (D.D.C. 1993) (blind individuals categorically ex-

cluded from jury service); United States v. Borough of

Audubon, 797 F. Supp. 353, 360 (D.N.J. 1991) (predominant

motivation underlying city’s efforts to exclude group home

8a

for the handicapped “was discriminatory animus”), aff'd, 968

F.2d 14 (3d Cir. 1992) (Table); Nolley v. County of Erie, 776

F. Supp. 715 (W.D.N.Y. 1991) (Constitution violated where

inmate with HIV was housed in the part of a prison reserved

for inmates who are mentally disturbed, suicidal, or a danger

to themselves, and was denied access to prison library and

religious services); Kroll v. St. Charles County, 766 F. Supp.

744, 744-751 (E.D. Mo. 1991) (courthouse and government

buildings broadly inaccessible to individuals with mobility

impairments); Bonner v. Arizona Dep’t of Corrs., 714 F.

Supp. 420 (D. Az. 1989) (deaf, mute, and vision-impaired in-

mate denied communication assistance, including during dis-

ciplinary proceedings, counseling sessions, and medical

treatment); DeLong v. Brumbaugh, 703 F. Supp. 399, 405

(W.D. Pa. 1989) (decision to exclude deaf individual from

jury was “unreasonable, discriminatory and violative of Sec-

tion 504 of the Rehabilitation Act”); Doe v. Dolton Elem.

Sch. Dist., 694 F. Supp. 440 (N.D. Ill. 1988) (elementary

student with AIDS excluded from attending regular classes

or extracurricular activities); Robertson v. Granite City

Comm. Unit Sch. Dist., 684 F. Supp. 1002 (S.D. Ill. 1988)

(seven-year old student with AIDS confined to a modular

classroom where he was the only student); Thomas v.

Atascadero Unified Sch. Dist., 662 F. Supp. 376 (C.D. Cal.

1986) (kindergarten student with AIDS excluded from class

and forced to take home tutoring); Thompson v. City of

Portland, 620 F. Supp. 482, 485-487 (D. Me. 1985) (police

violated the constitutional rights of a blind diabetic who was

in insulin shock by arresting him, transporting him on floor

of police cruiser, jailing him, and ignoring his explanation

that he was in insulin shock, despite fact that he wore a

Medic-Alert necklace and carried a white cane); Ass’n for

~

9a

Retarded Citizens of N.D. v. Olson, 561 F. Supp. 473, 491-492

(D.N.D. 1982) (finding violations of mentally retarded

residents’ constitutional rights to privacy, private property,

and free association, as (1) many of the mentally retarded

residents “are left fully naked in front of each other and

assistants and such residents are not provided places where

they can be in private” and “are denied the opportunity to

decide for themselves how to dress”; (2) the State did not

“adequately provide for an accounting of [each] resident’s

personal property and for a safe place of storage”; and (3) the

State did not “provide residents who are capable of com-

municating, reasonable opportunities to communicate with

others both inside and outside the institution where they

reside”), aff'd, 713 F.2d 1384 (8th Cir. 1983); Garrity v.

Gallen, 522 F. Supp. 171, 214 (D.N.H. 1981) (“blanket discri-

mination against the handicapped * * * is unfortunately

firmly rooted in the history of our country”); New York State

Ass’n for Retarded Children, Inc. v. Carey, 466 F. Supp. 487

(E.D.N.Y. 1979) (mentally retarded students excluded from

public school system); Hairston v. Drosnick, 423 F. Supp.

180 (S.D. W. Va. 1976) (school refused to admit child with

spina bifida without the daily presence of her mother, even

though student was of normal mental competence and capa-

ble of performing easily in a classroom situation); Smith v.

Fletcher, 393 F. Supp. 1366, 1368 (S.D. Tex. 1975) (gov-

ernment assigned paraplegic, who had a Master’s degree in

physiology, to menial clerical tasks based on “arbitrary and

unfounded decision as to her physical capabilities”), aff’d as

modified, 559 F.2d 1014 (5th Cir. 1977); Mills v. Board of

Educ., 348 F. Supp. 866 (D.D.C. 1972) (mentally retarded

students excluded from public school system); Pennsylvania

Ass’n for Retarded Children v. Commonwea'th, 334 F. Supp.

10a

1257 (E.D. Pa. 1971) (mentally retarded students excluded

from public school system); Daly v. DelPonte, 624 A.2d 876,

880, 885 (Conn. 1993) (holding that the commissioner’s exer-

cise of his “statutory authority to condition a motor vehicle

operator’s license on the licensee’s reporting his or her

medical status” violated the state constitution’s equal protec-

tion provision because the record “contained no evidence

that th[e] reporting requirement was narrowly tailored

either to the plaintiff’s condition at the time of its issuance or

to his probable future condition for the designated time

period”); State v. Schaim, 600 N.E.2d 661, 672 (Ohio 1992)

(under the Confrontation Clause, “[a] defendant who cannot

hear is analogous to a defendant who cannot understand

English, and a severely hearing-impaired defendant cannot

be tried without adopting reasonable measures to accommo-

date his or her disability”); Moye v. Moye, 627 P.2d 799, 801

(Idaho 1981) (holding that, while a parent’s physical condi-

tion is a valid consideration in the “best interests” approach

to determining the issue of a child’s custody, the trial court’s

overemphasis on the mother’s epilepsy rendered the custody

award to the father an abuse of discretion); State v. Staples,

437 A.2d 266, 268 (N.H. 1981) (ineffective assistance of

counsel in failing to secure assistance for hearing-impaired

defendant whose disability made him “unable to assist effec-

tively in the preparation of his defense”); In re Marriage of

Carney, 598 P.2d 36, 42 (Cal. 1979) (lower court “stereo-

type[d] William as a person deemed forever unable to be a

good parent simply because he is physically handicapped”);

Connecticut Inst. for the Blind v. Connecticut Comm’n on

Human Rights & Opps., 405 A.2d 618, 621 (Conn. 1978)

(blanket exclusion from state jobs of persons with visual

impairments); State v. Board of Educ., 172 N.W. 153, 153

lla

(Wis. 1919) (excluding a boy with cerebral palsy from public

school because he “produces a depressing and nauseating

effect upon the teachers and school children”); State v.

Barber, 617 So. 2d 974, 976 (La. Ct. App. 1993) (“{T]he Con-

stitution requires that a defendant sufficiently understand

the proceedings against him to be able to assist in his own

defense. Clearly, a defendant who has a severe hearing

impairment, without an interpreter, cannot understand the

testimony of witnesses against him so as to be able to assist

in his own defense.”); People v. Green, 561 N.Y.S.2d 130, 133

(County Ct. 1990) (holding that prosecutor’s peremptorily

striking a juror solely because she was hearing impaired, and

not because of any doubt of the juror’s ability to communi-

cate, violated the juror’s right to equal protection); Stewart

v. Stewart, 521 N.E.2d 956, 965-966 (Ind. Ct. App. 1988)

(holding that father’s visitation rights were improperly ter-

minated because of evidence that he was infected with the

AIDS virus); Peeler v. State, 750 S.W.2d 687, 690-691 (Mo.

Ct. App. 1988) (constitutionally ineffective assistance of

counsel in failure to request an interpreter, where the

hearing-impaired defendant was “probably unable to

understand what was being said at trial”); District 27 Comm.

Sch. Bd. v. Board of Educ., 502 N.Y.S.2d 325 (Sup. Ct. 1986)

(two school boards sought to prevent attendance of any

student with AIDS in any school in the city, unless all of the

students at that school had AIDS); Bednarski v. Bednarski,

366 N.W.2d 69, 73 (Mich. Ct. App. 1985) (holding that a

mother’s deafness was inappropriately weighed against her

in a custody dispute over her two minor children); People v.

Rivera, 480 N.Y.S.2d 426, 434 (Sup. Ct. 1984) (conviction was

unconstitutionally obtained because the deaf defendant had

no interpreter and did not understand his trial); Jn re

12a

Marriage of Paula R., 102 Cal. App. 3d 981, 988-989 (Ct.

App. 1980) (reversing the trial court’s award of permanent

custody of child to father because mother was confined to a

wheelchair, as the trial court did not use the proper standard

in determining who should receive custody: “whether the

handicapped parent’s condition will in fact have a substantial

and lasting adverse effect on the best interests of the child”);

Bevan v. New York State Teachers’ Retirement Sys., 345

N.Y.S.2d 921 (Sup. Ct. 1973) (statute allowing forced retire-

ment of teacher who became blind), modified, 355 N.Y.S.2d

185 (App. Div. 1974); In re Adoption of Richardson, 251 Cal.

App. 2d 222, 239 (1967) (trial court “stated, in effect, he will

systematically strike any and all deaf-mute petitioners from

any list of prospective adopting parents”); Commonwealth v.

Smith, 119 A.2d 620, 622 (Pa. Super. Ct. 1956) (holding that

the fact that a father suing for custody of his son suffers

from epilepsy is a factor that should be considered in deter-

mining whether to award custody).

APPENDIX B

The Justice Department publishes quarterly status

reports, which include information from a sampling of the

Department’s Disabilities Act enforcement efforts under 42

U.S.C. 12133. The status reports can be found at http://

www.ada.gov/enforce. htm. The 34 reports published to date

list 110 matters concerning courthouse accessibility or effec-

tive access to judicial proceedings. The following is a list of

those matters. One case (against the State of Massachusetts

alleging problems with physical accessibility) resulted in a

lawsuit (that remains pending), which was reported in the

January 2003 status report. The Table includes the juris-

diction in which the courthouses are located, the type of

problem reported by persons with disabilities, and the date

of the status report in which the matter appears. There are

50 cases that resulted in formal settlement agreements, 51

cases that resulted in informal settlement agreements, and 8

cases that resulted in formal mediation. In cases resulting in

informal settlements or mediation, the Justice Department

does not identify the covered jurisdiction by name:

Complaints Resulting In Formal Settlement Agree-

ments:

Jurisdiction “| Type of Problem | Status Report

Lucas County, OH physical access Jan. - Mar. 2003

Guernsey County,OH | physical access Oct. - Dec. 202

Essex County, NJ physical access Oct. - Dec. 2002

Windsor County, VT lack of sign lan- Oct. - Dec. 2002

_guage interpreter

Warren, OH physical access Apr. - June 2002

Ben Hill County, GA physical access Apr. - June 2001

Gulfport, MS lack of sign lan- Apr. - June 2000

guage interpreter

(1b)

3b

2b

Shelby County, TN lack of assistive Apr. - June 2000

listening devices

Adair County, OK physical access Jan. - Mar. 2000

Houston, TX lack of assistive Jan. - Mar. 2000

listening devices

Toledo, OH physical access and | July - Sep. 1999

lack of communica-

tion assistance

Lake County, IL lack of sign lan- July - Sep. 1999

guage interpreter

Oklahoma County, OK physical access and | Apr. - June 1999

lack of communi-

cation assistance

Georgiana, AL physical access Apr. - June 1999

State of Hawaii lack of sign lan- Oct. - Dec. 1998

guage interpreter

and assistive lis-

tening devices

McDowell County, WV_ | physical access July - Sep. 1998

Mendocino County,CA | physical access July - Sep. 1998

Johnson County, TN physical access July - Sep. 1998

Citrus County, FL physical access Apr. - June 1998

Chico County, AR physical access Jan. - Mar. 1998

Dickinson, ND physical access Jan. - Mar. 1998

Wetzel County, WV physical access Jan. - Mar. 1998

Twin Falls, ID lack of sign lan- Oct. - Dec. 1997

guage interpreter

and communi-

cation assistance

Philadelphia, PA lack of procedures | Oct. - Dec. i997

for jurors to re-

quest accommoda-

tions

Boone County, IN lack of assistive July - Sep. 1997

listening devices

Grand Rapids, MI lack of assistive July - Sep. 1997

listening devices

Outagamie County, WI | physical access and | Apr. - June 1997

lack of assistive

listening devices

Rome, NY physical access Jan. - Mar. 1997

Hancock County, MS assistive listening | Jan. - Mar. 1997

(deaf individual ex-

cluded from jury

service)

Harrison County, MS assistive listening Jan. - Mar. 1997

(deaf individual ex-

cluded from jury

service)

Roswell, NM lack of assistive Jan. - Mar. 1997

listening devices

Santa Clara lack of assistive Oct. - Dec. 1996

County, CA listening devices

Jones County, CA physical access Oct. - Dec. 1996

Town of Lloyd, NY lack of communi- July - Sep. 1996

cation assistance

Tallahassee, FL lack of communi- Apr. - June 1996

cation assistance

Pickens County, SC lack of assistive Oct. - Dec. 1994

listening devices

Fulton, MO lack of communi- Apr. - June 1994

cation assistance

Wadsworth, OH physical access Apr. - June 1994

4b

Alexandria, LA lack of communica- | Apr. - June 1994

tion assistance and

sign language in-

terpreter

Genesee County, MI physical access Apr. - June 1994

Hickman County, KY physical access April 1994

Van Buren County, AR | physical access April 1994

Harris County, TX physical access and | April 1994

lack of communi-

cation assistance

Scott County, AR physical access April 1994

Madison County, FL physical access April 1994

Pinellas County, FL lack of communi- April 1994

cation assistance

Salt Lake City, UT lack of communi- April 1994

cation assistance

(deaf individual

excluded from

jury)

Paulding County, OH physical access April 1994

Complaints Resulting In Informal Settlement Agree-

ments:

Jurisdiction Type of Problem Status Report

county in Ohio lack of sign lan- Jan. - Mar. 2003

_guage interpreter

unnamed jurisdiction lack of assistive Jan. - Mar. 2003

listening devices

county in Mississippi lack of sign lan- Jan. - Mar. 2003

interpreter

county in Illinois lack of sign lan- Oct. - Dec. 2002

_guage interpreter

county in Louisiana lack of sign lan- July - Sep. 2002

guage interpreter

5b

county in Pennsylvania | lack of accessible | Apr. - June 2002

parking ©

county in Arizona physical access Apr. - June 2002

county in Nebraska physical access Jan. - Mar. 2002

New England state lack of sign lan- Jan. - Mar. 2002

court system guage interpreter

and assistive

listening devices

county in Arizona lack of assistive Oct. - Dec. 2001

listening devices

county in Texas lack of sign lan- July - Sep. 2001

guage interpreter

county in California physical access July - Sep. 2001

Iowa court lack of sign lan- July - Sep. 2001

‘guage interpreter

county in Texas physical access Oct. - Dec. 1999

county in Oklahoma physical access Oct. - Dec. 1999

county in Pennsylvania | physical access Oct. - Dec. 1999

county in Texas lack of assistive | July - Sep. 1999

county in Colorado lack of accessible | July - Sep. 1999

parking

Michigan court lack of communica- | July - Sep. 1999

tion assistance

city in Pennsylvania physical access July - Sep. 1999

town in Ohio physical access Oct. - Dec. 1998

county in Michigan physical access Oct. - Dec. 1998

Louisiana parish physical access Apr. - June 1998

county in Michigan physical access Apr. - June 1998

county in Illinois lack of communica- | Jan. - Mar. 1998

tion assistance

county in Michigan. lack of assistive lis- | Oct. - Dec. 1997

6b

7b

county in Missouri physical access April 1994

“various cities and | physical access April 1994

towns in East and Mid- ;

west” |

county in Washington physical access April 1994

Michigan court lack of assistive lis- | April 1994

tening devices

Pennsylvania county lack of accommoda- | April 1994

court tion for person

with learning dis-

ability |

Complaints Resulting In Mediation:

Jurisdiction Type of Problem Status Report

county in Illinois physical access Oct. - Dec. 2002

county in Arkansas physical access Oct. - Dec. 2001

town in New York physical access Oct. - Dec. 2001

county in South lack of sign lan- July - Sep. 2001

Carolina guage interpreter

cvunty in California physical access Apr. - June 2001

county in Tennessee _| physical access Jan. - Mar. 2000

county in Nebraska physical access Jan. - Mar. 2000

Michigan court lack of sign lan- July - Sep. 1997 .

interpreter

county in Arizona lack of communica- | Oct. - Dec. 1997

tion aids

county in Florida physical access July - Sep. 1997

Tennessee circuit court | lack of communica- | July - Sep. 1997

tion aids

county in California lack of assistive lis- | Apr. - June 1997

tening devices

county in Michigan lack of auxiliary Jan. - Mar. 1997

aids

supreme court of a | lack of auxiliary Jan. - Mar. 1997

“southern state” aids

Colorado judicial lack of auxiliary Jan. - Mar. 1997

district aids

county in Wyoming physical access Jan. - Mar. 1997

county in Michigan physical access Oct. - Dec. 1996

county in Virginia lack of auxiliary Oct. - Dec. 1996

aids ,

city in California lack of auxiliary July - Sep. 1996

aids

county in West physical access July - Sep. 1996

Virginia

county in Washington lack of visualcom- | Apr. - June 1996

munication assis-

tance

county in California lack of accessible | Apr. - June 1996

parking _

county in Pennsylvania _| physical access Jan. - Mar. 1995

“western state court” lack of assistive lis- | Oct. - Dec. 1994

tening devices

Ohio court lack of communica- | Oct. - Dec. 1994

tion assistance

county in Kentucky _ physical access July - Sep. 1994

county in Colorado physical access July - Sep. 1994

county in Colorado physical access Apr. - June 1994

In addition to the settlement agreements reported in the

published status reports, there are several additional formal

settlement agreements entered into between the Justice

Department and various jurisdictions in cases dealing with

courthouses. Although they are not reported in the status

8b

reports, they are available on the website: http://www.

ada.gov

Jurisdiction Problem Date of

Agreement

Summers County, WV | physical access and | 5/11/00

lack of assistive lis-_

tening devices

Craig County, VA physical access 1/30/02

Allendale County,SC | physical access 8/13/01

. Butte County, SD physical access F301

Boulder County, CO physical access 10/2/00

Warren County, IL physical access 9/6/01

Perry County, KY physical access 9/25/01

City of Cambridge, physical access 11/1/01

OH

City of San Antonio, | physical access 1/30/02

TX

City of Savannah,GA_ | physical access 1/30/02

City of Bismarck, ND | physical access 10/16/02

Columbia County, NY | physical access 5/19/03

Loudon County, TN physical access and | 7/25/03

lack of assistive lis-

tening devices

Madison County, MS physical access 7/25/03

Worcester County, physical access 7/28/03

MD

APPENDIX C

Findings of Investigations Under the Civil Rights

Of Institutionalized Persons Act

42 U.S.C. 1997 et seq.

Between 1980 and the enactment of Title II of the Americans

with Disabilities Act in 1990, Department of Justice investigations

under the Civil Rights of Institutionalized Persons Act, 42 U.S.C.

1997 et seq., found unconstitutional treatment of individuals with

disabilities in institutions in more than ewenty-five States. From

1980 until the present, unconstitutional conditions have been found

in more than 200 institutions in more than thirty States throughout

the Country. The Tables below describe some of the findings issued

by the Department of Justice pursuant to 42 U.S.C. 1997b(a) (1).

Copies of the seuplete findings letters will be provided to the

Court upon request, and have been served upon counsel for the

petitioner and the private respondents.

(le)

2c

I. Investigations Prior to Enactment of the Americans with

Disabilities Act

and safety

Name of Categories of

Facility Constitutional

Violations

Rosewood MD 1982 | Failure to Many residents

Center provide sustained injuries

reasonable during “low staffing

supervision periods” (p. 4).

One resident left

the facility

unobserved and died

of exposure.

A profoundly

retarded resident

drowned when staff

left him unattended

in a bathtub.

Another died after

being pushed down a

flight of stairs

(pp. 4-5).

On another occasion,

“six severely

handicapped female

residents * * * were

allegedly raped by

an outside intruder.

There was only one

staff person on duty

to supervise the 32

residents * * * and

only one security

officer on duty to

cover the entire

Rosewood facility.

While the inability

of the residents to

communicate

apparently prevented

state officials from

confirming the rapes

* * * several of the

residents had

positive tests for

gonorrhea of the

throat right after

the incident” (p.

4).

Several male

patients “show([ed)

the presence of

venereal disease”

and “nonconsensual

sexual contact

occurred between one

resident and at

least one and

possibly three

residents” -(p. 4).

Abuse of

residents

An employee sexually

abused a resident

(p. 4).

Unsanitary

conditions

Facilities are

deteriorating; the

“stench of urine is

prevalent ina

number of

buildings.” Plumbing

problems left

overflowing toilets

unrepaired for days;

heating problems

subjected patients

to “sub-freezing

temperature in the

buildings

themselves” at times

(p. 5).

Inadequate

training

“Over 900 of the

1125 residents

receive less than

50% of the services

4c

5c

Name of

State

Year

Categories of

Constitutional

Violations

Details

célled for in their

program plans” (p.

2).

Valley State

Schools

medical and

mental health

care

East LA 1982 | Inadequate pp. 2-4

Louisiana medical and

State mental health

Hospital care

Enid & Paul’s; 0K 1983 | Inadequate “Insufficient

licensed physic an

coverage has

resulted in serious

harms to residents,”

contributing to

patient deaths (p.

2-3).

Inadequate

training

Lack of training

“contributes to and

manifests itself in

residents’

aggressive and

stereotypic

behaviors * * *

{such as] incessant

disordered physical

movements,

headbanging, biting,

hyperactivity, and

assaultive behavior”

(p. 5).

Failure to

provide

reasonable

supervision

and safety

“For example, a

group of 21 naked

residents were

observed being led

to @ shower area,

where two staff

sprayed the

residents down with

a large garden type

hose” (p. 5).

Name of

Facility

State

Year

Categories of

Constitutional

Violations

Unreasonable

use of

physical and

chemical

restraints

Details

Abuse of

residents

Staff found

“slapping, kicking,

hitting, or spanking

residents” while

records also

“reflect many

instances of

unexplained resident

injuries” (p. 6).

Unsanitary Lack of sanitation

conditions practices

contributed to

parasitic and

bacterial infections

requiring quarantine

of entire living

areas (p. 6).

Wheat Ridge CO | 1984 | Failure to “Due to lack of

Regional provide staff, residents

Center reasonable suffer neglect and

supervision numerous accidents

and safety

and injuries. * * *

[N]umerous residents

have sustained

injuries where the

cause remains

unknown. Resident

on resident assaults

are common; resi-

dents engaging in

self-abusive behav-

iors are frequently

unsupervised and

unattended.

Residents have been

6c

7c

Facility

State

Year

Categories of

Constitutional

Violations

Details

found with

unexplained broken

bones and burns to

the body. For

example, one

resident was found

with a femur segment

protruding through

the skin” (p. 2).

During tour, staff

came upon

“approximately 20

adult women being

cared for by one

person amid great

disorder and

confusion. Many of

these women were

partially undressed,

one was urinating on

the floor of the

living area and

several were

engaging in self-

abusive behavior”

(pm. 2).

Inadequate

medical and

mental health

care

“A large number of

Wheat Ridge

residents suffer

from severe contrac-

tures of their limbs

and other body

deformities due to

the absence of

necessary physical

and occupational

therapy” (p. 3).

“One troublesome

secondary effect of

these immobilizing

contractures due to

lack of physical

State

Year | Categories of

Constitutional

Violations

Details

therapy is the

dysfunctioning of

the digestive

system,” which has

apparently caused an

“abnormally high

percentage of Wheat

Ridge residents to

require pureed diets

Or gastroatomies for

tube feeding” (p.

care

4).

Logansport IN 1984 | Inadequate pp. 1-2

State medical and

Hospital mental health

Failure to

provide

reasonable

supervision

and safety

“Patients are not

being adequately

monitored and

supervised to

prevent suicidal

behavior or patient-

on-patient violence,

to notice and

correctly diagnose

symptoms of serious,

physical or

psychiatric

dysfunctions, to

monitor treatment

responses and drug

reactions, or to

determine

appropriate and

reasonably safe

modes of treatment

for each patient”

(pp. 2-3).

&c

Eglin Mental

Health

Centers

Categories of

Constitutional

Violations

Inadequate

medical and

mental health

care;

Inadequate

training;

Unreasonable

use of

physical

restraints

Lack of professional

staff lead to

“inappropriate uses

of drugs and serious

treatment errors

which have resulted

in physical danger

to, or unnecessary

physical or chemical

restraint of, the

involved patients”

(p. 3). Patients

are further

“endangered by

inadequate medical

care relating to

serious and

sometimes

debilitating or

life-threatening

drug side-effects”

(p. 4).

Sc

infection, or

disease” (pp. 4-5).

Failure to

provide

reasonable

supervision

and safety

“Units in the

facilities are

overcrowded to a

point that makes it

virtually imposcible

for staff to

maintain control

without regular and

extensive use of

physical and

chemical restraints”

(p. 4).

Unsanitary

conditions

“Sanitation and

maintenance in

portions of the

facilities are so

inadequate as tc

resent serious

risks to patients of

poisoning,

MI

1984

Failure to

provide

reasonable

supervision

and safety;

Abuse of

residents

Large number of

patient deaths under

unusual

circumstances, some

associated with

restraint practices

(p. 3).

A patient died after

“a stranglehold was

applied to him while

he was being

subdued. He

reportedly lay on

the seclusion room

floor from 15-20

minutes before

efforts were made to

resuscitate him”

(pp. 2-3).

“Another patient

also died due to

strangulation, and

his body showed

signs of a beating”

(p. 3).

“A third patient \

allegedly died from

injuries suffered in

a beating. Still

another patient, who

had expressed her

fear for her safety

to her psychologist

on a Friday, died

over the weekend.

Her body allegedly

was bruised and

battered” (p. 3).

10¢

Police found that

another patient who

had died ina

seclusion cell “had

contusions on his

face and the back of

his head” (p. 3).

There have also been

“numerous incidents

of rape, assault and

threat of assault,

broken bones and

bruises” (p. 3).

A staff member was

found to have had

“sexual relations

with three different

patients in one

night.” Other

patients were beaten

by staff, “including

one who was

stripped, placed in

seclusion and

severely beaten by

several attendants”

Unreasonable

use of

physical and

chemical

restraints

“(R)estraints are

used at Fairview in

lieu of training and

for the convenience

of staff,” and were

employed more than

2,000 times per

month (p. 4).

| (ip. 3).

Inadequate Inadequate medical

medical and care contributed to

mental health several deaths and

care preventable suicides

(pp. 3-4).

Fairview OR | 1985 | Inadequate Training “is

Training training virtually non-

Center existent” and

“results ina

serious level of

self-injurious and

aggressive

behaviors” (ip. 3).

Failure to

provide

reasonable

supervision

and safety

Records showed “an

alarmingly high

number of injuries,”

such as 197

incidents of

injuries in one

month resulting from

self-abuse or

aggression. In one

two-month period,

there were 27

incidents of sexual

abuse (p. 3 n.1).

“[Wle observed

numerous residents

with open wounds,

gashes, abrasions,

contusions, and

fresh bite marks.

Many other residents

had deep scars and

scabs from a long

history of self-

abuse or

victimization” (p.

3).

Due to inadequate

supervision of

residents with pica

behavior (ingesting

inedible objects),

“[rlesidents have

had to undergo

Details

Surgery, sometimes

Oh &@ repeated basis,

to remove foreign

objects or to

relieve bowel and

other obstructions

ceused by pica.

Physicians at

Fairview have

indicated that some

residents have had

surgery so

requently that any

more operations

resulting from pica

would jeopardize

their lives” ip.

8).

Inadequate

medical and

mental health

care

Dangerous

psychotropic

medication practices

(p. 7-8).

“Seventy percent of

residents

institution-wide

heave gum disease”

(p. 8).

Unsanitary

conditions

“Many of the

cottages we toured

smelled of urine and

waste. Sewage

backup in cottage

basements, up to

three feet high on

the walls, is

permitted to remain

for days. * * * {Ajn

August 1983 random

sample of Fairview

residents revealed

l3c

that 35% had pinworm

infection, a

parasite which is

spread by fecal and

oral routes in

unclean environ-

ments” (p. $).

—

Fort Stanton NM 1985, | Inadequate Facilities’ sole

Bosepital «& medical and physician wrote

Training mental health institution-wide

Scheel care prescriptions for

prescription

medications and

powerful

Ppsychotropic

medications,

authorizing their

use when nursing

staff believes it

necessary, in

contravention of

professional

standards and

creating substantial

risk to patients

(p. 2).

jmental health

care

Unreasonable Psychotropic drugs

use of being used to

chemical restrain patients

restraints without any

oe physician assessment

for the need for

such measures

(p. 2.)

| Inadequate “Many residents are

subjected to

potentially

dangerous”

prescriptions of

multiple

psychotropic drugs-

Name of State| Year | Categories of Details

Facility Constitutional

“without any medical

justification”

(p. 2)

Southbury CT 1985 | Failure to Low staffing levels

Training provide lead to inadequate

School reasonable supervision, which

supervision permitted one

and safety

——

resident to leave

the facility and die

of exposure; another

was able to remove

and hide a large

knife (p. 10).

In one cottage,

staff compensate for

low staffing level

by placing “at least

ome resident in

restraints for up to

12 howms a day due

to time staff’s

inaba lity to monitor

his activities” (p.

10).

Use of psychotropic

medications

substantially

departed from

professional

standards, creating

substantial health

risks for patients

(pp. 3-6).

—

lnadequate

medical and

mental health

care

Investigation found

“dangerous

medication

interactions and

errors, and found

that acute medical

problems, such as

fractures and

infections,

frequently do not

receive critically

necessary follow-up

reatment” (p. 3).

Inadequate Pacility’s failure

training; to provide adequate

Unreasonable training program

use of resulted in “a

physical and dangerous reliance

chemical on the use of both

restraints physical and

chemical restraint”

(p. 6).

1986 | Inadequate County Jail was

medical and

mental health

care

being used to house

mentally ill persons

awaiting civil

commitment hearings

or placement in a

mental hospital for

up to eleven days.

At time of

investigation, jail

held 42 mentally-ill

detainees (pp. 1-2).

No mental health

treatment was

provided during

period of

confinement (p. 3).

“Male mentally-ill

detainees were

confined * * * ina

small cell designed

to serve as the

16c

Categories of

Constitutional

Violations

‘drunk tank.’ Some

of the detainees

were placed in hand

and leg irons” (p.

3).

lve

Westboro

State

Hospital

1986

Unsanitary

conditions

“The smell and sight

of urine and feces

pervade not only the

toilet areas, but

ward floors and

walls as well” (p.

3).

“Bathrooms and

showers were filthy.

Living areas are

infested with

vermin. There are

consistent shortages

of clean bed sheets,

face cloths, towels

and underwear. Open

commodes with human

waste in them were

often found in rooms

to which many

patients in unclean

geri-chairs are

confined all day,

including meal

times” (p. 3).

“(Nlon-sterile

techniques are used

when changing

patients’ dressings

and feeding tubes”

(p. 3).

Name of

Facility

State

Year

Categories of

Constitutional

Violations

Details

problems, resulting

in “increased

dosages of

potentially

dangerous

antipsychotic drugs”

(p. 5).

“Acutely life

threatening

illnesses * * * are

also not detected

appropriately or on

a timely basis.* * *

[I]nappropriate and

inadequate medical

care preceded many

of the[] deaths”

reviewed during the

investigation

(p. 5).

“Patients also

frequently do not

receive prescribed

medications because

the ward or pharmacy

lacks adequate

supplies” (p. 4).

Inadequate

medical and

mental health

care

Patients’ physical

illnesses are often

misdiagnosed as

psychological

Unreasonable

use of

physical and

chemical

restraints

Facility used

sedating drugs on

elderly patients for

no medically

justifiable reason,

but instead to

control residents’

behavior “subjecting

vulnerable geriatric

patients to the

dangerous effects of

inappropriate drug

usage and over-

medication” (p. 7).

Failure to

provide

reasonable

supervision

and safety;

pp. 7-8

Inadequate

training

Kalamazoo MI 1986 | Inadequate Inadequate staffing

Regional training; prevents the

Psychiatric Unreasonable facility from

Hospital use of providing treatment

physical that could “reduce

restraints or eliminate

unreasonable risks

to [patients’ ]

personal safety and

the undue use of

bodily restraint”

(p. 2).

Inadequate Facility fails to

medical and

mental health

care

adequately monitor

efficacy and side

effects of

potentially

dangerous drugs,

creating

unjustifiable risk

of “deleterious side

effects, tardive

dyskinesia,

involuntary,

abnormal muscle

movements,

akathisia, and

parkinsonism”

(p. 3).

Napa State

Hospital

CA

1986

Failure to

provide

reasonable

supervision

and safety;

Unreasonable

use of

physical and

chemical

restraints

Severe staffing

shortages “result in

patient management,

in lieu of

treatment, through

the inappropriate

use of seclusion,

chemical restraint,

and physical

restraint” (p. 2).

Restraint practices

“pose significant

hazards to the

personal safety of

NSH patients” (p.

4).

Inadequate

medical and

mental health

care;

Inadequate

training

Certain medication

practices at

facility “violated

all known standards

of medical practice”

resulting in great

danger to patient

safety (p. 2).

There was no

monitoring of drug

side effects and

several patients

exhibited an

“antipsychotic drug-

induced side effect,

potentially

irreversible, that

may result in

permanent

physiological

damage” (p. 3).

20c

Categories of

Constitutional

Violations

Facility failed to

provide training

programs adequate to

protect patient

safety and avoid

need for restraint

and seclusion

(p. 5).

Metropolitan

Developmental

Center

1986

Inadequate

medical and

mental health

care

“MDC employs

antipsychotic

medication primarily

as a means of

controlling behavior

without proper

[medical]

justification.” As a

result, “[n)umerous

residents

demonstrated serious

neurological side

effects from

sustained exposure

to high doses of

antipsychotic drugs”

(p. 2). Facility

had no program to

monitor for serious,

potentially

irreversible side

effects of these

medications (pp. 2-

3).

Other residents

“have been exposed

to an extreme risk

of drug-induced

toxic poisoning by

the absence of

preliminary and

periodic drug-level

testing” (p. 3).

2lc

Belle Chasse LA | 1986 | Inadequate Administration of

State School medical and psychotropic drugs

mental health substantially

care departed from ~

professional

Standards. There

was no program to

detect “Tardive

Dyskinesia” which is

“an antipsychotic

drug induced side

effect, potentially

irreversible, that

may result in

permanent

physiological

damage” (p. 2).

Broadview, OH 1987 | Inadequate In the absence of

Cleveland é& training; adequate training

Warrensville Unreasonable programs, “staff

Developmental use of overuse psychotropic

Centers chemical medication to

restraints control the behavior

of residents” (p.

1).

Inadequate p. 2

mental health

care

Montgomery OH | 1987 | Inadequate pp. 2-3

Developmental medical and

Center mental health

care; Failure

to provide

reasonable

supervision

and safety

22c

Name of

Facility

Los Lunas

Hospital and

Training

School

NM

1988

SS ey

Categories of

Constitutional

Violations

inadequate

raining;

Unreasonable

use of

chemical

restraints

“(S)traightjackets

and ammonia

inhalants are used

as a consequence for

antisocial behavior.

Restrained

individuals are in

some cases isolated

in a room with a

closed door out of

sight of staff.

This practice,

absent adequate

surveillance, places

severely handicapped

residents at great

risk of injury and

is not

professionally

justifiable” (p. 2).

“Los Lunas staff are

using physical

restraints,

isolation and

punishment * * * to

control the behavior

of residents in lieu

of necessary

training programs”

(p. 2).

Failure to

Due to lack of

medical and

mental health

care

provide supervision, a woman

reasonable was raped, developed

supervision peritonitis, and

and safety died (p. 3).

Inadequate Facility provides

almost no physical

therapy to the large

number of patients

with body

deformities who need

therapy “to prevent

muscular or skeletal

breakdown” (ip. 3).

IL

1989

Inadequate

training;

Unreasonable

use of

physical and

chemical

restraints

“To control resident

behavior, in lieu of

professionally

designed training

programs, staff

resort to chemical

and physical —

restraints” (p. 3).

Inacequate

medical and

mental health

care

“Due to the lack of

adequate medical

supervision of

patients, early

signs of illness and

disease go

undetected and/or

untreated” (p. 5).

Failure to

provide

reasonable

supervision

and safety

“”~

Patient was dead on

the floor of her

room for some time

before staff

discovered her,

after staff failed

to perform scheduled

room checks.

A patient strangled

to death while left

unsupervised in

improperly-applied

restraints.

A resident who was

left unsupervised

ran out the front

door and into

traffic, where she

was killed (pp. 6-

7).

Failure to

provide

reasonable

supervision

and safety;

Inadequate

training

Investigation found

that inadequate

supervision

contributed to “an

alarmingly high

frequency of

resident injuries”

(p. 5).

Inadequate training

program “fails to

reduce self-abusive,

aggressive, and

other maladaptive

and inappropriate

behaviors.” “As a

result of these

problems, rocking,

pacing, and

aimlessly wandering

residents were seen

throughout the

institution.

Instances of self-

abuse were not an

uncommon sight;

observed attempts to

intervene

appropriately were

rare. Many

residents were

observed to have

cuts, bruises and

scrapes. Clearly,

many of the injuries

may have been

preventable with

more effective

programming and if

more trained staff

were available” (p.

3).

25c

Unreasonable

use of

physical and

chemical

restraints

“Staff resort to

chemical and

physical restraints

to control

residents’ behavior,

in lieu of

professionally

designed training

programs” (p. 3).

Inadequate

mental health

care

p. 4

Abuse of A number of staff

residents had been disciplined

or criminally

charged for abusing

patients (p. 5 n.1).

Hawaii State HI 1990 | Inadequate Staff at facility

Bospital food, clothing | confirmed that there

and shelter

was often

insufficient food;

“Staff reported that

patients are often

wrapped in blankets

and sheets due to

the absence of

adequate clothing”;

inadequate items for

basic personal

hygiene (p. 2).

Unsanitary

conditions

“[Slanitation is

grossly inadequate.

During a tour of

{one unit] our

consultants had to

walk around numerous

puddles of urine.

* * * * Kitchen

facilities exhibited

signs of serious

cockroach

26c

Categories of

Constitutional

Violations

Details

infestation and

other unsanitary

practices” ip. 3).

Inadequate

medical and

mental health

care

“[D])rug practices at

HSH are seriously

deficient and

represent

significant

departures from

generally accepted

medical standards”

(p. 3).

Unreasonable

use of

physical and

chemical

restraints;

Inadequate

training

“In view of serious,

chronic and

facility-wide

staffing shortages,

HSH staff employ

bodily restraints --

physical restraints,

seclusion, and

chemical restraints

-- at an

unjustifiably high

level solely for

their own

convenience or in

lieu of

professionally

designed treatment

programs” ip. 5).

Zic

II. Investigations Subsequent To Enactment of the Americans

with Disabilities Act

Failure to “In many units,

Developmental provide there was a4

Center reasonable pervasive smell of

supervision urine. Residents in

and safety; diapers were wet;

unsanitary often their clothes

conditions were soaked through

with urine” (p. 3).

Inadequate “[Wle observed young

medical care children, some as

young as two, whose

limbs were severely

contracted” from

lack of physical

therapy. “Many

residents were left

| unattended in cribs,

with no efforts

being made to move

their limbs,

position them, or to

provide any real

physical therapy

services” (p. 3).

“The penis of

another resident, a

paraplegic with an

in-dwelling Foley

catheter, was eroded

throughout its

entire length due to

inadequate care and

monitoring” (p. 3).

28c

Inadequate medical

care contributed to

deaths of five

residents in past

Six months (p. 4).

medical and

mental health

care

Abuse of pp. 5-4

residents

Inadequate pp. 8-9

training

len

Northern VA | 1991 | Inadequate In part because of

Virginia training; inadequate training

Training Unreasonable programs, use of

Center use of restraints was

physical and pervasive:

chemical “restraint is used

restraints so frequently that

it appears to be the

treatment of choice

rather than a

technique of last

resort” (p. 4).

Inadequate “Serious medical

conditions and

marked functional

deterioration are

not comprehensively

evaluated or

effectively treated”

due to inadequate

medical system (p.

5).

Inadequate “Boswell’s staff are

Retardation training; using restraints,

Center Unreasonable isolation and

use of punishment to

physical and control the behavior

chemical of residents in lieu

restraints of necessary

training programs”

(p. 2).

Inadequate pp. 3-4

mental health

care

Unsanitary p.

conditions

Embreeville PA | 1991 | Inadequate Delays in emergency

Center medical and medical care

mental health contributed to

care patient death (p.

2).

Abuse of Undercover agent

residents observed repeated

instances of abuse

over nine-week

period (p. 3).

Inadequate p. 2

training

programs

Agnews CA | 1991 | Unsanitary “Clients and

Developmental conditions residents smelled of

Center urine and feces” (p.

2).

Unreasonable Bodily restraint and

use of medication used in

physical and lieu of training

chemical programs or adequate

restraints staff supervision

| (pp. 4-5).

30¢ 3le

Name of Categories of Name of State/ Year | Categories of Details

Facility Constitutional Facility Constitutional

Violations

Inadequate

medical care

Investigation found

“resident after

resident whose legs

had lost all muscle

tone and whose hip,

knee and ankle

joints had become

permanently fixed or

cemented in place in

a deformed frog-leg

or windswept

position due to

months and even

years of inactivity”

(p. 2).-

“[I]nordinate delays

in diagnosing and

responding to

serious resident

illness” placed

large population of

medically fragile

patients at

substantial risk

(pp. 5-6)

TN

1992

Violations

Inadequate

medical and

mental health

care

Deficiencies in the

facility’s medical

care system

contributed to two

recent deaths (pp.

5-6). Lack of

psychiatrists leads

to serious errors in

diagnosis and

medication

prescription (pp. 7-

8).

Abuse of

residents

Auministrators

“confirmed to us

that staff abuse of

residents is a

serious problem” (p.

2).

Unreasonable

use of

physical and

chemical

restraints

“Patients at MMHI

are subjected to

both an undue amount

of bodily restraint

and dangerous

restraint practices”

(p. 9).

“[S]taff members are

placing patients

inappropriately in

physical restraints

simply because they

are confused or

disoriented.”

Patients are also

restrained while

sedated, “a

substantial

departure from

accepted standards

of psychiatric care”

(pp. 9-10).

Fircrest

Residential

Habilitation

“enter

WA

1992

Failure to

provide

reasonable

supervision

and safety

“([R)lesidents suffer

needless serious

injuries” due to

lack of supervision,

including an average

of “410 incidents

per month for some

32c

33c

Categories of

Constitutional

Violations

440 residents”

(p. 1).

“Numerous residents

were seen with fresh

wounds and

lacerations,

including shaved

spots on heads

revealing stitches

and healing

injuries; red marks

and significant

bruises; multiple

scabs and scars, and

large bandages or

casts” (pp. 1-2).

“Our consultants

observed residents

engaged in self-

injurious behavior,

having seizures,

masturbating in open

view -- all without

staff intervention

of any kind” (p. 2).

“[O]ne resident was

found dead in the

day room of a living

unit; the resident

had been dead for up

to three hours

before her body was

discovered by staff”

(p. 2).

Dangerous

positioning and

feeding practices

put residents’ lives

at risk (p. 2).

Name of

Facility

State

sn dalla

Year | Categories of

Constitutional

Violations

Inadequate

training

Details

“Due to a lack of

human interaction

and care, residents

have developed

significant

stereotypic,

maladaptive or anti-

social behaviors”

including

“headbanging, eating

foreign objects and

pulling hair, to

waving arms,

flicking fingers and

other self-

stimulatory

activities” (p. 1).

“Much of the anti-

social, maladaptive

behavior, injuries

and use of

restraints is

attributable, in

significant part, to

the lack of * * *

training programs”

(p. 5).

Unreasonable

use of

physical and

chemical

restraints

Physical restraints,

including “staff

incapacitating

residents by holding

them down involun-

tarily on the floor

or elsewhere for a

period of ‘enforced

relaxation’” were

pervasively “used as

punishment, for the

convenience of staff

and in lieu of

training programs”

(p. 4-5).

34c

Forrest

County Jail

1993

Categories of

Constitutional

Violations

Inadequate

mental health

care

“There are no mental

health services

available at the

jail and the holding

cells into which

disturbed or

mentally-ill * * *

prisoners are placed

pose a direct threat

to their health and

safety” (p. 2).

“During the course

of our tour of the

jail, our

consultants observed

a severely mentally

ill inmate, clad

only in an

undershirt, housed

in the general

population” where he

had been waiting for

several weeks for a

transfer to a mental

health facility.

“He had allegedly

eaten some glass and

was prone to

defecate on the

floor of the cell”

(pp. 2-3).

35c

Name of

Facility

State

Year

Categories of

Constitutional

Violations

Details

a strap across the

abdomen) and placed

into a locked

seclusion room” for

convenience of

staff. Leaving a

restrained patient

unsupervised creates

“great risk of harm

from choking and

asphyxiation” (p.

2).

Arizona State

Hospital

AZ

1993

Unreasonable

use of

physical and

chemical

restraints

Patients “are

routinely put into

five-point

restraints (a

practice where a

patient is

restrained on a bed

and bound by the

ankles, by the

wrists with the arms

to the side, and by

Jones County MS |1993 | Inadequate Mentally ill

Jail medical and inmates, and

mental health mentally ill persons

care detained pending

civil commitment

proceedings, housed

in five-by-six foot

steel cage,

sometimes for months

(p. 4).

Chicago-Read IL | 1993 | Inadequate pp. 1-2

Mental Health mental health

Center care;

Inadequate

training

Unreasonable p. 2-3

use of

physical

restraints

Sonoma CA | 1994 | Failure to “As a result of

Developmental provide inadequate

Center reasonable supervision,

supervision residents have been

and safety

subjected to

numerous, serious,

unnecessary

injuries” (p. 2).

36c

Name of

Facility

State

Year

Categories of

Constitutional

Violations

Details

In one incident, a

resident drowned in

a bathtub while

unattended (p. 2).

In another, one

resident was

attacked by another

with a knife (p. 2).

Inadequate

training

Training programs

are inadequate and

lead to harm from

unaddressed

behaviors and to the

unnecessary and

unreasonable use of

physical and

chemical restraints

(pp. 4-6).

Inadequate

medical care

Improper feeding

practices for

severely disabled

residents “subject

them to severe risk

of choking,

aspiration and

aspiration

pneumonia” (p. 3).

“The lack of

physical therapists

and physical therapy

services has led to

the development of

undue contractures,

muscle atrophy,

inappropriate body

growth, and physical

degeneration” (p.

3).

37c

“The failure of

staff to properly

maintain

[tracheostomy] tubes

subjects residents

to the risk of death

from suffocation and

presents other

significant health

risks, including

infection” (p. 3).

WI

1994

Failure to

provide

reasonable

supervision

and safety

Inadequate

supervision has led

to serious resident

injuries. For

example, one elderly

resident with a

condition that -

creates a great risk

of falling was taken

to the hospital for

an injury caused by

a fall, whereupon

hospital staff noted

that she had fallen

62 times that day

(p. 10).

Inadequate

medical and

mental health

care

While facility has

over 300 residents

with seizure

disorders,

management practices

are dangerously

deficient; some

patients kept on

medications with

strong and dangerous

side effects for

years after they are

no longer necessary;

some are kept on

potentially

38c

dangerous drugs even

though they are not

helping. For

example, one patient

who had been seizure

free for six years,

was kept on

medication even

though lab results

showed that dosage

was too low to be

having any effect

and even though

patient appeared to

be suffering from

dementia as a side

effect of the drug

(p. 3-4).

Facility’s use of

psychotropic

medications

substantially

departs from

professional

standards, exposing

patients to

unnecesssr«y risks of

dangerovs side

effects (pp.7-9).

Inadequate

training;

Unreasonable

use of

physical

restraints

pp. 10-13

39c

and safety

Eastern State 1994 | Inadequate pp. 1-6

Hospital and mental health

Hancock care;

Geriatric Inadequate

Center raining;

Unreasonable

use of

physical and

chemical

restraints

Clover Bottom! IN 1995 | Failure to . Many injuries linked

Developmental provide to lack of

Center reasonable supervision; “in one

supervision seven month period,

a resident received

injuries on twenty-

six occasions,” half

of which required

stitches (pp. 3-4).

Inadequate pp. 5-8

training

programs

Inadequate “Residents languish

medical and

mental health

care

in carts and ill-

fitting wheelchairs,

which exacerbate or

allow physical

deformities to

progress -- in some

cases to a point

that the deformity

may preclude a

person from sitting

upright in a

wheelchair” (p.12).

Name of

Facility

Nat T.

Winston

Developmental

Center

State/ Year

TN | 1995

49c

Categories of

Constitutional

Violations

Inadequate

training;

Unreasonable

use of

physical and

chemical

restraints

Details

“NTWDC, because of

the ineffectiveness

of its behavioral

programs, relies on

physical and

chemical restraints

to control

residents’ behavior”

ip. 3).

Leck of training

programs and

supervision

contribute to high

incidence of

injuries, including

“multiple bites,

lacerations, broken

bones, bruises and

abrasions. One

individual was

injured 25 times

* * * in an eight-

month period. * * *

Several residents

were found

attempting to cut

themselves with

knives or

razorblades” (p. 4).

Inadequate

medical and

mental health

care

pp. 4-5

Unsanitary

conditions

“Sanitary conditions

were very poor at

the food facility”;

“Mold and mildew

were prevalent

throughout the

refrigerators and

coolers” because of

plumbing leaks (pp.

5-6).

TN

1995

Inadequate

medical and

mental health

care

“Due to an

inadequate medical

care delivery system

* * * residents are

subjected to

needless fractures,

recurrent

aspiration,

preventable weight

loss, recurring

seizures, avoidable

injuries, and other

direct threats to

their health” (p.

2).

Psychiatrists

prescribing

dangerous

combinations of

drugs “absent any

rational

justification in

violation of medical

standards” (p. 3).

Failure to

provide

reasonable

supervision

and safety

Due to lack of

supervision,

residents “are

repeatedly ‘found

with blood’ on them

from injuries that

occur outside of

staff supervision.

On other occasions,

residents’ severe

injuries are

discovered only

during bathing or at

bedtime” (p. 5).

Name of

Facility

State

42c

Year

Categories of Details

Constitutional

Violations

“[Oj]ne eleven year

old boy apparently

lost the sight in

one eye from

repeated

headslapping which

resulted in a

detached retina.

Other residents were

noted with swollen,

disfigured features

resulting from years

of self-injury.

Still others had

permanent scars from

continual self-

mutilation of their

faces and arms” (p.

6).

Inadequate

training

Many residents’

“destructive

behaviors remain

unaddressed” by

training programs.

“For example, one

resident had large

scratches on her

face that had been

self-inflicted; our

consultant

psychologist was

informed that there

was no program to

modify or eliminate

this unsafe

behavior.” The same

was true for a

patient who

repeatedly reopened

a face wound and one

who had a history of

pica for almost 20

years (p. 7).

VA

Year

1995

43c

Categories of

Constitutional

Violations

Inadequate

medical and

mental health

care

Details

“[P]sychiatric care

is grossly

inadequate” and

“poses direct

threats to the

health and safety of

patients” (p. 3).

“A county hospital

is located only a

few hundred yards

[away], yet there

have been a number

of well-publicized

deaths which are

linked to

substantial delays

in providing

adequate medical

care” (p. 4).

“[O]ne patient died

partly because of a

toxic buildup of

antidepressants in

her body. Another

patient died from

meningitis after a

psychiatrist

requested that she

be seen by an

internist who failed

to appear to assess

her life-threatening

condition” (p. 4).

Unreasonable

use of

physical and

chemical

restraints

“Due to inadequate

staffing, NVMHT is

unable to provide

one-on-one

monitoring for many

residents who are

suicidal or are in

restraints or

44c

Name of

Facility

Categories of

Constitutional

Violations

seclusion and

require such close

supervision.

Patients have been

injured while being

restrained and are

then left unattended

by medical

personnel” (p. 5).

Failure to

provide

reasonable

supervision

and safety

“(T]he lack of

supervision and care

is so grave that

patients have been

subjected to severe

harm, including

death” (p. 5).

Landmark

Learning

Center

FL

1996

Failure to

provide

reasonable

supervision

and safety

pp. 3-4

Inadequate

training and

mental health

care

pp. 4-10

Harold Jordan

Habilitation

Center

TN

1996

Inadequate

training and

mental health

care

pp. 3-4

45c

Virginia

Mental Health

Institute

State

Year

Categories of

Constitutional

Violations

Failure to

provide

reasonable

supervision

and safety

Details

Problems with

supervision persist:

in the past year,

there were 70

incidents of

patients escaping

from the facility,

and an average of 27

incidents of patient

self-injury and

another 17 incidents

of patient-on-

patient violence

each month (p. 7).

Patients repeatedly

injured themselves

even when

“supposedly under

careful

supervision.” “One

patient committed

approximately 12

such acts of self-

injury while on

‘special

observation’

status.”

“One patient somehow

managed to obtain a

knife while in the

seclusion room” (p.

7).

Inadequate

training

“[S)taff have

resorted to calling

the police and

having patients

arrested rather than

addressing the

underlying

psychological

issues” (p. 8).

46c

Central State

Hospital

VA

1997

Categories of

Constitutional

Violations

Failure to

provide

reasonable

supervision

and safety

Lack of staffing and

failure to supervise

patients leads to

repeated incidents

of preventable

injury and suicide

attempts (pp. 3-5).

One patient

Supposedly under 24-

hour surveillance

was found with 42

bruises over his

body from

unwitnessed

incidents (p. 4).

Inadequate

medical and

mental health

care

pp. 5-7, 9-11

Unreasonable

use of

physical and

chemical

restraints

Facility’s use of

restraints

substantially

departs from

professional

Standards (pp. 7-9).

Patient died after

being left in five-

point restraint on

bed as punishment;

her psychiatrist had

warned facility

staff not to

restrain her because

of seizure risk.

Nonetheless, the

“patient had spent

over 300 hours of

the last two months

of her life in

restraints” (p. 8).

47c

Los Angeles

County Jail

CA

1997

Inadequate

mental health

care

Jail system housing

approximately 1,700

mentally ill inmates

provides virtually

no treatment to most

inmates other than

medication (p. 8).

Jail exacerbates

many inmates’

illness by placing

them in solitary

confinement for 23

hours or more per

day (p. 12).

Failure to

provide

reasonable

supervision

and safety

Jail places many

mentally ill inmates

in general

population, but

requires them to

wear uniforms that

designate them as

mentally ill. Asa

result, many inmates

suffered

from beatings and

sexual assaults (pp.

14, 17).

Centro de

Reeducacion

para Adultos

PR

1997

Unsanitary

conditions/

inadequate

shelter

“Many of the

buildings are

dilapidated,

decaying, and lack

adequate plumbing

and lighting.” At

one facility, “the

showers do not work,

the faucets do not

work, and che

toilets do not flush

properly. In order

to bathe the

clients, staff dump

48c

Categories of

Constitutional

Violations

water from water

tanks into large

movable garbage cans

from which the staff

manually extract

water using smaller

buckets to pour it

on the residents.”

Lack of water means

that staff cannot

wash hands after

changing some

patients’ diapers

(p. 3).

Inadequate

training and

mental health

care; Failure

to provide

reasonable

supervision

and safety

Investigators found

patient “sitting on

the floor * * *

moaning to himself.

We noticed a stream

of blood trickling

down his helmet.

* * * * When the

nurse removed his

helmet, we

discovered that [the

patient’s) head had

been severely

damaged due to years

of self-abuse and

head banging. [He)

had butted and

rammed his head into

walls and post

corners so often

that he had pushed

back completely his

hair and skin on the

front half of his

head.” Nonetheless,

“the Commonwealth

has failed to

provide [the

patient] with

49c

State

Year

Categories of

Constitutional

Violations

Details

professional

psychological or

behavioral

services.”

Investigation found

many other such

individuals not

receiving adequate

care (p. 6).

Unreasonable

use of

physical and

chemical

restraints

“Restraints are

prevalent at many of

the institutions

* * * and are

related lack of

behavioral program-

ming, training, and

professional mental

health intervention.

* * * * [Sjtaff use

a bed sheet to tie

{a client’s] waist

and torso to a bench

and to one of the

iron bars at the

facility to keep her

from walking around

the building and

engaging in

aggressive,

maladaptive

behaviors such as

biting and hitting

other clients.

Staff tie [another

client) up in four-

point restraints to

her bed for the

entire time she is

menstruating” (p. 7)

50c

Center for

Integral

Services

Categories of

Constitutional

Violations

Failure to

provide

reasonable

supervision

and safety

“On our tour of CIS,

we generally found a

dangerous -

environment for the

clients. We noticed

many CIS residents

with fresh injuries,

including

lacerations and

bruises, as well as

historical remnants

of past injuries

suffered at CIS,

such as disfiguring

scars. Many clients

had suffered facial

injuries or severe

injuries on the back

of their heads with

resulting deep scars

and hair loss” (p.

3).

Parents of clients

showed pictures of

“son with a very

swollen, bulbous,

purple and black

eye. The father

told us that his son

has suffered a host

of other injuries at

CIS including a

broken nose, a

severe knee injury

* * * and various

head injuries, some

requiring sutures.”

Another picture

showed a client with

a black eye, “a

bloody let eye

socket, bloody

swollen lips, and a

face marked with

fresh lacerations.

The mother reported

that her son has

also suffered a

fractured arm,

numerous

lacerations, bites,

broken teeth” and

“is now limited in

the use of his hands

to one index finger

and thumb on each

hand” (p. 4).

Inadequate

food, shelter

and sanitation

“[T)he facility runs

out of food monthly”

and “is in a state

of disrepair.”

“Residents have to

sleep on beds with

old, worn mattresses

that are dirty and

often wet.” Toilets

do not flush. As a

result, “virtually

all of the toilets

on the men’s side

had urine and/or

feces in them,

producing a health

hazard and an

unpleasant,

malodorous

environment” (pp. 5-

6).

“Staff admitted to

us that they

routinely bathe the

male clients by

lining them up naked

and hosing them down

in groups * * * with

@ garden hose” (pp.

o-7).

Ab:.se of Facility

res: tents administrator

acknowledged

problems with

protecting clients

from staff abuse and

stated that “one CIS

staff member had

recently been

convicted for

sodomizing a client”

(p. 3)™~

Unreasonable

use of

physical and

chemical

restraints

“CIS frequently uses

restraints as a

substitute for

meaningful activity

during the day or

for appropriate

programs to address

maladaptive

behaviors * * * to

control residents

they routinely use

mechanical

restraints, such as

leather cuff belts

(which are tied to

the heavy metal beds

around the limbs of

the clients),

restraint vests and

Straight jackets,

and restraint nets”

(ip. 8).

53c

Inadequate

medical and

mental health

care

Facility “routinely

runs out of certain

critical drugs” such

as anti-convulsant

medications for

epileptic patients,

who suffered

repeated untreated

seizures as a result

(pp. 5S, 10).

“Most of the

residents are put on

psychotropic

medication simply to

control their

behaviors without

appropriate

psychiatric

assessments,

diagnoses, treatment

and monitoring” i(p.

9).

lnadequate

training

programs

pp. 7-9

1997

Failure to

provide

reasonable

supervision

and safety

Client went for

weeks with an

undetected fractured

shoulder, even

though obviously in

pain and bruised (p.

6).

Abuse of

residents

Four staff members

recently indicted

for abusing

residents, many

other incidents of

abuse documented by

facility (pp. 4-5,

15-16).

54c

Unreasonable

use of

physical and

chemical

restraints

“A staff member left

a client in full

mechanical

restraints

unattended for hours

in a room with a

known aggressor”

while staff watched

television (p. 5).

Failure to provide

adequate training

programs leads to

some patients being

in restraints

virtually non-stop

(p. 12).

Failure to monitor

clients in

restraints led to

injuries (p. 12-13).

Inadequate

training

As a result of

insufficient

training programs,

“residents’ aberrant

behaviors continue

unabated, often get

worse, and lead

frequently to other

destructive

behaviors” (p. 10).

Staff in one unit

withheld food from

clients if they

misbehaved (p. 10).

Inadequate

medical and

mental health

care

pp. 13-15

Holly Center MD |1998 | Failure to Improper feeding

provide techniques for

reasonable severely disabled

supervision residents

and safety; contributed to a

Inadequate constant rate of

medical care hospitalization and

several deaths from

choking and severe

respiratory problems

(pp. 3-5).

Systemic

inadequacies in

medical care

contributed to the

recent death of a

severely handicapped

and retarded

resident (pp. 7-8).

Inadequate pp. 8-13

training

Davies County; KY /| 1998 | Inadequate No mental health

Detention

Center

mental health

care

services provided.

“During our tour, we

observed several

acutely mentally ill

individuals at the

main jail, obviously

in need of

psychiatric

evaluation and

treatment, being

left for days at a

time in

‘observation’ --

i.@., in a cell by

themselves. One

inmate was observed

singing for hours on

end, and eating his

own feces” (p. 11).

56c

As a result of

inadequate mental

health and suicide

prevention system, a

15-year-old boy

killed himself (p.

12).

New Castle

Developmental

Center

IN

1998

Failure to

provide

reasonable

supervision

and safety;

Inadequate

training

“Injuries are

pervasive throughout

the campus. With a

census of 164

individuals, New

Castle averaged over

1,000 resident

injuries/incidents

on a monthly basis”;

over a four-month

period, “88 percent

of New Castle

residents sustained

injuries; 82 percent

of the residents

were injured more

than one time during

this period” (pp. 2-

3).

In a single month,

one resident was

assaulted 20 times

and another was

assaulted 19 times

(p. 3).

“Other injuries are

unwitnessed by

staff, including

bone fractures,

bloodied noses and

body bruises”

(p. 3).

“(Wje witnessed

instances in which

residents engaged in

aggressive and self-

injurious behaviors

(including head

slapping, hand

biting, eye gouging

and table banging)

without appropriate

and timely staff

intervention (p. 4).

Inadequate

medical and

mental health

care

While half of

residents have

epilepsy, facility’s

seizure management

practices

dangerously depart

from accepted

medical practices,

increasing risk of

liver and permanent

brain damage (pp. 5-

6). Insufficient

levels of nursing

staff lead to

failures to identify

and treat serious

medical problems

(pp. 6-7).

Georgia

Juvenile

Facilities

GA

1998

Inadequate

mental health

care

Inadequate mental

health care provided

throughout State’s

juvenile detention

facilities and

training schools

(pp. 9-11, 19-22).

Many mentally ill

youth “end up locked

in security units

where they spend

58c

59c

Categories of

Constitutional

Violations

large portions of

their days isolated

in small rooms with

few activities. In

these units, and

elsewhere, they are

often restrained,

hit, shackled, put

in restraint chairs

for hours, and

sprayed with [pepper

spray] by staff who

lack the training

and resources to

respond

appropriately to the

manifestations of

mental illness” (p.

20).

Inadequate medical

care contributed to

several recent

deaths (p. 8).

Unreasonable

use of

physical and

chemical

restraints

Facility uses

excessive and

dangerous restraint

techniques (p. 7).

Western State

Hospital

VA

1999

Inadequate

medical and

mental health

care

Facility fails to

identify and address

mental health needs,

leading to

inadequate treatment

and risk of harm.

In one case, patient

identified as

suicidal was given

no treatment to

address suicidal

urges and

subsequently hanged

himself in his room

(pp. 3-4).

Physicians are not

permitted to

prescribe some

medically-indicated

drugs for budget

reasons (pp. 5-6).

Failure to

provide

reasonable

supervision

and safety;

Inadequate

training

Combination of

inadequate staffing

and training for

patients results in

high level of

violence and

injuries. Within

one 90-day period,

the facility of 370

patients “recorded

169 altercations, 81

instances of self-

injurious behavior,

and 128 falls” as

well as 8 suicide

attempts and 13

escapes. In the

recent past, one

patient committed

suicide and was dead

for an hour before

being discovered (p.

9).

WA

1999

Unreasonable

use of

physical and

chemical

restraints

“In 1998, Rainier

logged many

thousands of hours

of restraint use,

without

demonstrating that

less restrictive

| interventions were

tried or that

60c

Facility

Categories of

Constitutional

Violations

Details

underlying

behavioral support

plans and services

were adequate.” For

example, the

facility’s response

to patients

attempting to eat

inedible objects

(pica) or digging at

their eyes or

rectums was to place

patients in nearly

constant restraints:

one patient with

pica behavior spent

2,000 hours ina

restraint suit over

a six-month period;

another averaged 600

hours per month for

pica and rectal

digging; another

averaged 22 hours

per day in the suit

for rectal digging

(pp. 2-3).

Failure to

provide

reasonable

supervision

and safety;

Inadequate

training;

Inadequate

medical and

mental health

care

“Without the

necessary

specialized

treatment, * * *

residents have

suffered serious

harm. Residents

* * * have blinded

themselves from

chronic behaviors,

such as eye poking

and head banging,

that the facilities

have not addressed

in accordance with

ng era mS

he ne > ihn apron ree

accepted

professional

standards” (p. 7).

Numerous incidents

of unaddressed,

dangerous behaviors,

such as pica, head-

banging, and eye-

poking (pp. 7-8).

In one facility,

“approximately 20

percent of all

Morgan residents

were admitted to the

emergency room or

hospital, some on

more than one

occasion, for

treatment of

injuries” in a one-

year period; during

same year residents

in another facility

“suffered

approximately 77

lacerations

requiring sutures

(32 involving the

head), 37 bone

fractures, 8

dislocated

shoulders, and 2

incidents of finger

amputation” (p. 10).

Clark County

Detention

Center

Tnadequate

mental health

care

Jail failed

adequately to

identify mentally

ill inmates and

provide appropriate

62c

Categories of

Constitutional

Violations

treatment, resulting

in serious harm and

Suicides (pp. 5-6).

Mercer County

Geriatric

Center

NJ

2002

Failure to

provide

reasonable

supervision

and safety

Steff fail to

supervise geriatric

patients. In one

case “a family

member used to visit

at odd hours, only

to find her

unattended relative

lying in urine, with

parts of her naked

body exposed” and

with “unexplained

skin bruises” (p.

3).

More than a third of

patients need

assistance with

eating and drinking,

but poor nutrition

and hydration

practices result in

substantial weight

losses,

hospitalization for

dehydration, and

even death. In one

case, a resident

with “an improperly

positioned feeding

tube” “slowly

starved without

adequate MCGC staff

intervention.” In

another case, “staff

fed a resident so

quickly, she

aspirated and died”

(p. 6).

63c

Name of State/ Year | Categories of Details

Facility Constitutional

Violations

Inadequate Staff “fail to

medical and assess and treat

mental health residents properly

care for potentially

serious medical and

mental health

problems,” including

failure to prevent

and treat “residents

with deep, bleeding

bedsores,

infections, and

other potentially

life-threatening

conditions” (p. 4).

Unreasonable “Staff routinely

use of restrain residents

physical and while the staff

chemical engage in various

restraints tasks” (p. 5).

Banks- GA |2002 | Failure to Staff failed to take

Jackson- provide adequate measures to

Commerce reasonable prevent serious

Medical supervision falls, other than to

Center and and safety, restrain patients to

and

unreasonable

use of

physical and

chemical

restraints

chairs and beds

(p.3). Other

patients are injured

by staff when

transferred to and

from bed, due to

inadequate staff

available or

improper staff

training (p. 4).

Recently, one

unsupervised

resident wandered

out of the facility

in a wheelchair

“crashed into a

sidewalk curb,

64c

Name of

Facility

Categories of

Constitutional

Violations

overturned” and was

seriously injured

(p. 4).

Inadequate

medical and

mental health

care

Facility fails to

provide physical

therapy that could

“prevent

contractures (i.e.,

permanent muscular

contraction)” due to

lack of adequate

steff to implement

physical therapy

orders (p. 6).

Failure to move and

reposition patients

led to development

of pressure sores,

some of which became

infected and require

hospitalization (pp.

6-7).

“[T)here is

insufficient

psychiatric

consultation and

oversight of

medication use” at

the facility; a

psychiatrist visits

the facility only 4

times per year. As

a result, many

patients have been

on inappropriate

doses or types of

powerful psychiatric

medications for

years (pp. 9-10).

65c

“Approximately 60

residents at BJC

have a diagnosis of

depression, yet the

facility fails to

provide group or

individual

counseling, or other

activities designed

to treat depression”

(p. 10).

Inadequate

food, clothing

and shelter

While facility

provided ample food

and drink, it

frequently failed to

assist patients who

needed feeding and

drinking assistance.

As a result,

“numerous residents

were hospitalized

for conditions

related to lack of

adequate hydration”

(p. 9).

KY

2002

Abuse of

residents

Numerous incidents

of staff abuse,

leading to arrests

of staff, including

one incident in

which “an Oakwood

staff member stomped

on a resident’s head

and rendered the

resident

unconscious” (p. 3).

Failure to

provide

reasonable

supervision

and safety

Very high incidence

of harm to residents

at facility. During

one 3 month period,

one patient “had 30

reported incidents

of harm” (p. 4).

Even though treating

professionals

rdered close

supervision of

resident with pica,

lax supervision

permitted resident

to engage in “at

least 70 more

attempted and/or

actual incidents of

pica behavior

involving paper,

trash, toilet paper,

shoestrings, a

washcloth, an ink

pen, a sock, and

fecal material.” In

another case,

failure to supervise

resulted in surgery

to remove five

plastic gloves staff

had not observed the

resident eating (p.

5).

Unreasonable

use of

physical and

chemical

restraints

Lack of adequate

behavior management

leads to “increased

use of physical and

chemical restraints

even though all of

the Oakwood

psychologists

interviewed stated

Tata «+

67c

that restraints and

other aversive or

restrictive

procedures such as

helmets and mittens

are unnecessary and

unwarranted” (p. 7).

Inadequate

medical and

mental health

care

More than half of

the psychiatric

diagnoses for

patients are

incorrect (p. 9).

Many residents

receive powerful

psychotropic

medications with

potentially serious

side effects “in

place of adequate

behavioral treatment

plans” (p. 9).

Facility does not

adequately monitor

those on

psychotropic

medications for

serious, potentially

irreversible side

effects (p. 10).

Although facility

has more than 200

residents with

seizure disorders,

it provided

neurology

consultations for

only 10-15 residents

per month. As a

result, many

residents are simply

68c

put on powerful

anti-convulsant

medications that

might not be

necessary, if

treated properly,

and which have

serious side

effects. One

patient had been on

such medications

daily for 25 years,

even though he had

not had a seizure

Since 1976 and there

was no indication

that he had been

seen by a

neurologist until

2001 (p. 14).

Failure to provide

adequate medical

monitoring and care

had contributed to

preventable resident

deaths (p. 11).

On numerous

occasions, nurses

gave medication to

wrong patient, and

pills are found

lying on floors of

living areas (p.

16).

2002

Inadequate

medical and

mental health

care

Inadequate mental

health care systems

contributed to

preventable suicides

(pp. 4-6).

69c

Facility provided no

professional

individualized

treatment, other

than medication, to

seriously mentally

ill residents (p.

7).

Nevada Youth

Training

Center

NV

2002

Inadequate

medical and

mental health

care

When mentally ill

youth are receiving

psychotropic

medications at the

time of entry into

the facility, those

“medications are

automatically and

permanently

discontinued upon

the youths’ arrival”

without

individualized

review by a medical

professional (p. 9).

Santa Fe

County Adult

Detention

Center

NM

2003

Inadequate

medical and

mental health

care

Facility provides no

qualified medical

staff to treat

inmates with serious

mental illness,

permitting

counselors to make

medical decisions

about psychotropic

medications (pp. 16-

17).

Nim Henson

Geriatric

Center

2003

Inadequate

medical and

mental health

care

Facility medication

practices

substantially depart

from professional

Tle

standards, placing

patients at risk

(pp. 3-6)

Numerous patients

put on feeding tubes

unnecessarily,

apparently for the

convenience of staff

(p. 11).

Mentally ill

patients “either are

untreated or treated

incorrectly” (p.

15).

accepted practice

and staff are

inadequately trained

(pp. 7-9).

Unreasonable

use of

physical and

chemical

restraints

Facility sedates

elderly patients for

convenience of staff

(pp. 8-9).

New Lisbon

Developmental

Center

2003

Failure to

protect from

physical harm

Residents subjected

to frequent physical

harm by other

residents as well as

by facility’s staff

(pp. 3-6).

Inadequate

medical and

mental health

care

Inadequate medical

care provided to

residents with bowel

obstructions and

seizure disorders,

placing residents at

risk of serious

complications (pp.

17-18).

Program to deal with

behavioral problems

does not comport

with generally

Unreasonable Unnecessary use of

use of mechanical

physical and restraints (pp. 9-

chemical 10).

restraints

Use of psychotropic

drugs to control

residents’ behavior

does not comport

with generally

accepted practices

(pp. 10-11).

Los Angeles CA | 2003 | Inadequate Failure to treat an

County medical and estimated 75% of

Juvenile mental health juveniles in need of

Rallis care mental health care

(p. 7).

Failure to comport

with professional

standards regarding

psychological

counseling (pp. 12-

14).

Failure to

administer

psychotropic

medications safely

and effectively (pp.

14-16).

Failure to

effectively treat

youths on suicide

watch (pp. 17-18).

72e

Name of State/| Year | Categories of Details

Facility Constitutional

Violations -

Excessive use Unjustified use of

of force Oleoresin Capsicum

spray, including

agéinst juveniles

with respiratory

problems (pp. 20-

22).

Failure to Juveniles frequently

protect from subjected to

physical harm violence from other

juveniles, resulting

in “significant

injury” (pp. 22-23).

Garfield OK | 2003 | Inadequate Provision of medical

County Jail 6 medical and services to inmates

Garfield mental health “is seriously

County Work care deficient and places

Center inmates at risk of

harm” (p. 10).

Provision of mental

health care

inadequate,

particularly in

regard to suicide

prevention (pp. 14-

15).

Metropolitan CA | 2003 | Inadequate Psychiatric services

State mental health “substantially

Hospital care depart from

generally accepted

professional

standards of care

and expose the

children and

adolescents [in the

facility] toa

Significant risk of

harm and to actual

harm” (p. 3).

73c

Name of

Facility

State

Year

Categories of

Constitutional

Violations

Details

Inappropriate use of

psychotropic

medications (pp. 9-

11).

Unreasonable Use of physical and

use of chemical restraints

physical and “substantially

chemical departs” from

restraints standards of care

and exposes children

to “excessive and

unnecessary

restrictive

interventions” (p.

25).

Reginald P. MS 2003 | Inadequate “[I]nappropriate use

White Nursing mental health of multiple

Facility care medications” and

“excessive reliance

on psychotropic

medications

(chemical

restraints)” (p. 8).

Claudette Box; AL | 2003 | Inadequate Facility administers

Nursing Home medical and “excessive or

mental health unnecessary doses of

care psychotropics” (p.

3).

Oakley & MS |2003 | Unreasonable Use of physical

Columbia use of restraints such as

Training physical “[h]og-tying and

Schools restraints [p] ole-shackling”

despite lack of

“penological

justification or

therapeutic or

rehabilitative

benefit” of such

disciplinary methods

(pp. 5-9).

74c

Name of

Facility

State

Year

Categories of

Constitutional

Violations

Details

Excessive use

of force

Pacility staff “use

excessive force with

impunity” (pp. 9-

11).

Inadequate

mental health

care

“Many youth on

psychiatric

medications are not

allowed to continue

to receive those

medications when

they are admitted”

ip. 15).

Facilities “fail to

employ adequate

Suicide prevention

measures” (p. 16).

ee

APPENDIX D

CONSTITUTION OF THE UNITED STATES

AMENDMENT XI

The Judicial power of the United States shall no‘ be

construed to extend to any suit in law or equity, commenced

or prosecuted against one of the United States by Citizens of

another State, or by Citizens or Subjects of any Foreign

State.

AMENDMENT XIV

SECTION 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

* *x * * *

SECTION 5. The Congress shall have power to enforce,

by appropriate legislation, the provisions of this article.

(1d)

2d

SELECTED PROVISIONS OF THE AMERICANS WITH

DISABILITIES ACT OF 1990, 42 U.S.C. 12101 et seq.

§ 12101. Findings and purpose

(a) Findings

The Congress finds that—

(1) some 43,000,000 Americans have one or more

physical or mental disabilities, and this number is increasing

as the population as a whole is growing older;

(2) historically, society has tended to isolate and

segregate individuals with disabilities, and, despite some

improvements, such forms of discrimination against indi-

viduals with disabilities continue to be a serious and per-

vasive social problem;

(3) discrimination against individuals with disabilities

persists in such critica] areas as employment, hoysing, public

accommodations, education, transportation, communication,

recreation, institutionalization, health services, voting, and

access to public services; .

(4) unlike individuals who have experienced discrimina-

tion on the basis of race, color, sex, national origin, religion,

or age, individuals who have experienced discrimination on

the basis of disability have often had no legal recourse to

redress such discrimination;

(5) individuals with disabilities continually encounter

various forms of discrimination, including outright inten-

tional exclusion, the discriminatory effects of architectural,

transportation, and communication barriers, overprotective

rules and policies, failure to make modifications to existing

facilities and practices, exclusionary qualification standards

3d

and criteria, segregation, and relegation to lesser services,

programs, activities, benefits, jobs, or other opportunities;

(6) census data, national polls, and other studies have

documented that people with disabilities, as a group, occupy

an inferior status in our society, and are severely disadvan-

taged socially, vocationally, economically, and educationally;

(7) individuals with disabilities are a discrete and

insular minority who have been faced with restrictions and

limitations, subjected to a history of purposeful unequal

treatment, and relegated to a position of political power-

lessness in our society, based on characteristics that are

beyond the control of such individuals and resulting from

stereotypic assumptions not truly indicative of the individual

ability of such individuals to participate in, and contribute to,

society;

(8) the Nation’s proper goals regarding individuals with

disabilities are to assure equality of opportunity, full partici-

pation, independent living, and economic self-sufficiency for

such individuals; and

(9) the continuing existence of unfair and unnecessary

discrimination and prejudice denies people with disabilities

the opportunity to compete on an equal basis and to pursue

those opportunities for which our free society is justifiably

famous, and costs the United States billions of dollars in

unnecessary expenses resulting from dependency and

nonproductivity. .

(b) Purpose

It is the purpose of this chapter—

(1) to provide a clear and comprehensive national man-

date for the elimination of discrimination against individuals

with disabilities;

4d

(2) to provide clear, strong, consistent, enforceable

standards addressing discrimination against individuals with

disabilities;

(3) to ensure that the Federal Government plays a

central role in enforcing the standards established in this

chapter on behalf of individuals with disabilities; and

(4) to invoke the sweep of congressional authority,

including the power to enforce the fourteenth amendment

and co regulate commerce, in order to address the major

areas of discrimination faced day-to-day by people with

disabilities.

5d

Title II, Part A, of The Americans With Disabilities Act

§ 12131. Definitions

As used in this subchapter:

(1) Public entity

The term “public entity” means—

(A) any State or local government;

(B) any department, agency, special purpose dis-

trict, or other instrumentality of a State or States or local

government; and

(C) the National Railroad Passenger Corporation,

and any commuter authority (as defined in section 2410(4)

of title 49).

(2) Qualified individual with a disability

The term “qualified individual with a disability” means an

individual with a disability who, with or without reasonable

modifications to rules, policies, or practices, the removal of

architectural, communication, or transportation barriers, or

the provision of auxiliary aids and services, meets the

essential eligibility requirements for the receipt of services

or the participation in programs or activities provided by a

public entity.

§ 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.

§ 12133. Enforcement

The remedies, procedures, and rights set forth in section

794a of title 29 shall be the remedies, procedures, and rights

this subchapter provides to any person alleging discrimina-

tion on the basis of disability in violation of section 12132 of

this title.

§ 12134. Regulations

(a) In general

Not later than 1 year after July 26, 1990, the Attorney

General shal] promulgate regulations in an accessible format

that implement this part. Such regulations shall not include

any matter within the scope of the authority of the Secretary

of Transportation under section 12143, 12149, or 12164 of this

title.

(b) Relationship to other regulations

Except for “program accessibility, existing facilities”, and

“communications”, regulations under subsection (a) of this

section shall be consistent with this chapter and with the

coordination regulations under part 41 of title 28, Code of

Federal Regulations (as promulgated by the Department of

Health, Education, and Welfare on January 13, 1978), ap-

plicable to recipients of Federal financial assistance under

section 794 of title 29. With respect to “program accessibil-

ity, existing facilities”, and “communications”, such regula-

tions shall be consistent with regulations and analysis as in

part 39 of title 28 of the Code of Federal Regulations, ap-

plicable to federally conducted activities under such section

794 of title 29.

7d

(c) Standards

Regulations under subsection (a) of this section shall

include standards applicable to facilities and vehicles covered

by this part, other than facilities, stations, rail passenger

cars, and vehicles covered by part B of this subchapter.

Such standards shall be consistent with the minimum

guidelines and requirements issued by the Architectural and

Transportation Barriers Compliance Board in accordance

with section 12204(a) of this title.

~ * * ~ *

8d

Title II, Part B, of The Americans With Disabilities Act

§ 12141. Definitions

As used in this subpart:

(1) Demand responsive system

The term “demand responsive system” means any sys-

tem of providing designated public transportation which

is not a fixed route system.

(2) Designated public transportation

The term “designated public transportation” means

transportation (other than public school transportation)

by bus, rail, or any other conveyance (other than trans-

portation by aircraft or intercity or commuter rail trans-

portation (as defined in section 12161 of this title)) that

provides the general public with general or special serv-

ice (including charter service) on a regular and continu-

ing basis.

(3) Fixed route system

The term “fixed route system” means a system of pro-

viding designated public transportation on which a vehi-

cle is operated along a prescribed route according to a

fixed schedule.

(4) Operates

The term “operates”, as used with respect to a fixed

route system or demand responsive system, includes op-

eration of such system by a person under a contractual or

other arrangement or relationship with a public entity.

(5) Public school transportation

The term “public school transportation” means trans-

portation by schoolbus vehicles of schoolchildren, per-

9d

sonnel, and equipment to and from a public elementary

or secondary school and school-related activities.

(6) Secretary

The term “Secretary” means the Secretary of Trans-

portation.

§ 12142. Public entities operating fixed route systems

(a) Purchase and lease of new vehicles

It shall be considered discrimination for purposes of sec-

tion 12132 of this title and section 794 of Title 29 for a public

entity which operates a fixed route system to purchase or

lease a new bus, a new rapid rail vehicle, a new light rail ve-

hicle, or any other new vehicle to be used on such system, if

the solicitation for such purchase or lease is made after the

30th day following July 26, 1990, and if such bus, rail vehicle,

or other vehicle is not readily accessible to and usable by in-

dividuals with disabilities, including individuals who use

wheelchairs.

(b) Purchase and lease of used vehicles

Subject to subsection (c)(1) of this section, it shall be con-

sidered discrimination for purposes of section 12132 of this

title and section 794 of Title 29 for a public entity which op-

erates a fixed route system to purchase or lease, after the

30th day following July 26, 1990, a used vehicle for use on

such system unless such entity makes demonstrated good

faith efforts to purchase or lease a used vehicle for use on

such system that is readily accessible to and usable by indi-

viduals with disabilities, including individuals who use

wheelchairs.

10d

(c) Remanufactured vehicles

(1) General rule

Except as provided in paragraph (2), it shall be con-

sidered discrimination for purposes of section 12132 of

this title and section 794 of Title 29 for a public entity

which operates a fixed route system—

(A) to remanufacture a vehicle for use on such

system so as to extend its usable life for 5 years or

more, which remanufacture begins (or for which the

solicitation is made) after the 30th day following July

26, 1990; or

(B) to purchase or lease for use on such system a

remanufactured vehicle which has_ been

remanufactured so as to extend its usable life for 5

years or more, which purchase or lease occurs after

such 30th day and during the period in which the us-

able life is extended;

unless, after remanufacture, the vehicle is, to the maxi-

mum extent feasible, readily accessible to and usable by

individuals with disabilities, including individuals who use

wheelchairs.

(2) Exception for historic vehicles

(A) General rule

If a public entity operates a fixed route system

any segment of which is included on the National

Register of Historic Places and if making a vehicle of

historic character to be used solely on such segment

readily accessible to and usable by individuals with

disabilities would significantly alter the historic char-

acter of such vehicle, the public entity only has to

make (or to purchase or lease a remanufactured vehi-

cle with) those modifications which are necessary to

lld

meet the requirements of paragraph (1) and which do

not significantly alter the historic character of such

vehicle.

(B) Vehicles of historic character defined by regula-

tions

For purposes of this paragraph and section

12148(b) of this title, a vehicle of historic character

shall be defined by the regulations issued by the Sec-

retary to carry out this subsection.

§ 12143. Paratransit as a complement to fixed route

service

(a) General rule

It shall be considered discrimination for purposes of sec-

tion 12132 of this title and section 794 of Title 29 for a public

entity which operates a fixed route system (other than a sys-

tem which provides solely commuter bus service) to fail to

provide with respect to the operations of its fixed route sys-

tem, in accordance with this section, paratransit and other

special transportation services to individuals with disabili-

ties, including individuals who use wheelchairs, that are suf-

ficient to provide to such individuals a level of service (1)

which is comparable to the level of designated public trans-

portation services provided to individuals without disabili-

ties using such system; or (2) in the case of response time,

which is comparable, to the extent practicable, to the level of

designated public transportation services provided to indi-

viduals without disabilities using such system.

(b) Issuance of regulations

Not later than 1 year after July 26, 1990, the Secretary

shall issue final regulations to carry out this section.

12d

(c) Required contents of regulations

(1) Eligible recipients of service

The regulations issued under this section shall require

each public entity which operates a fixed route system to

provide the paratransit and other special transportation

services required under this section—

(A)(i) to any individual with a disability who is

unable, as a result of a physical or mental impairment

(including a vision impairment) and without the assis-

tance of another individual (except an operator of a

wheelchair lift or other boarding assistance device), to

board, ride, or disembark from any vehicle on the sys-

tem which is readily accessible to and usable by indi-

viduals with disabilities;

(ii) | to any individual with a disability who needs

the assistance of a wheelchair lift or other boarding as-

sistance device (and is able with such assistance) to

board, ride, and disembark from any vehicle which is

readily accessible to and usable by individuals with dis-

abilities if the individual wants to travel on a route on

the system during the hours of operation of the system

at a time (or within a reasonable period of such time)

when such a vehicle is not being used to provide desig-

nated public transportation on the route; and

(ili) to any individual with a disability who has a

specific impairment-related condition which prevents

such individual from traveling to a boarding location or

from a disembarking location on such system;

(B) to one other individual accompanying the

individual with the disability; and

(C) to other individuals, in addition to the one

individual described in subparagraph (B), accompanying

13d

the individual with a disability provided that space for

these additional individuals is available on the

paratransit vehicle carrying the individual with a dis-

ability and that the transportation of such additional

individuals will not result in a denial of service to indi-

viduals with disabilities.

For purposes of clauses (i) and (ii) of subparagraph (A),

boarding or disembarking from a vehicle does not include

travel to the boarding location or from the disembarking

location.

(2) Service area

The regulations issued under this section shall require

the provision of paratransit and special transportation

services required under this section in the service area of

each public entity which operates a fixed route system,

other than any portion of the service area in which the

public entity solely provides commuter bus service.

(3) Service criteria

Subject to paragraphs (1) and (2), the regulations is-

sued under this section shall establish minimum service

criteria for determining the level of services to be re-

quired under this section.

(4) Undue financial burden limitation

The regulations issued under this section shall provide

that, if the public entity is able to demonstrate to the

satisfaction of the Secretary that the provision of

paratransit and other special transportation services

otherwise required under this section would impose an

undue financial burden on the public entity, the public en-

tity, notwithstanding any other provision of this section

(other than paragraph (5)), shall only be required to pro-

14d

vide such services to the extent that providing such serv-

ices would not impose such a burden.

(5) Additional services

The regulations issued under this section shall estab-

lish circumstances under which the Secretary may require

a public entity to provide, notwithstanding paragraph (4),

paratransit and other special transportation services un-

der this section beyond the level of paratransit and other

special transportation services which would otherwise be

required under paragraph (4).

(6) Public participation

The regulations issued under this section shall require

that each public entity which operates a fixed route sys-

tem hold a public hearing, provide an opportunity for

public comment, and consult with individuals with dis-

abilities in preparing its plan under paragraph (7).

(7) Plans

The regulations issued under this section shall require

that each public entity which operates a fixed route sys-

tem—

(A) within 18 months after July 26, 1990, submit

to the Secretary, and commence implementation of, a

plan for providing paratransit and other special trans-

portation services which meets the requirements of

this section; and

(B) on an annual basis thereafter, submit to the

Secretary, and commence implementation of, a plan for

providing such services.

(8) Provision of services by others

The regulations issued under this section shall—

15d

(A) require that a public entity submitting a plan

to the Secretary under this section identify in the plan

any person or other public entity which is providing a

paratransit or other special transportation service for

individuals with disabilities in the service area to which

the plan applies; and

(B) provide that the public entity submitting the

plan does not have to provide under the plan such serv-

ice for individuals with disabilities.

(9) Other provisions

The regulations issued under this section shall include

such other provisions and requirements as the Secretary

determines are necessary to carry out the objectives of

this section.

(d) Review of plan

(1) General rule

The Secretary shall review a plan submitted under

this section for the purpose of determining whether or not

such plan meets the requirements of this section, includ-

ing the regulations issued under this section.

(2) Disapproval

If the Secretary determines that a plan reviewed un-

der this subsection fails to meet the requirements of this

section, the Secretary shall disapprove the plan and notify

the public entity which submitted the plan of such disap-

proval and the reasons therefor.

(3) Modification of disapproved plan

Not later than 90 days after the date of disapproval of

a plan under this subsection, the public entity which

submitted the plan shall modify the plan to meet the re-

quirements of this section and shall submit to the Secre-

16d

tary, and commence implementation of, such modified

plan.

(e) “Discrimination” defined

As used in subsection (a) of this section, the term “dis-

crimination” includes—

(1) a failure of a public entity to which the regula-

tions issued under this section apply to submit, or com-

mence implementation of, a plan in accordance with sub-

sections (c)(6) and (c)(7) of this section;

(2) a failure of such entity to submit, or commence

implementation of, a modified plan in accordance with

subsection (d)(3) of this section;

(3) submission to the Secretary of a modified plan

under subsection (d)(3) of this section which does not meet

the requirements of this section; or

(4) a failure of such entity to provide paratransit or

other special transportation services in accordance with

the plan or modified plan the public entity submitted to

the Secretary under this section.

(f) Statutory construction

Nothing in this section shall be construed as preventing a

public entity—

(1) from providing paratransit or other special trans-

portation services at a level which is greater than the

level of such services which are required by this section,

(2) from providing paratransit or other special trans-

portation services in addition to those paratransit and

special transportation services required by this section, or

(3) from providing such services to individuals in ad-

dition to those individuals to whom such services are re-

quired to be provided by this section.

17d

§ 12144. Public entity operating a demand responsive

system

If a public entity operates a demand responsive system, it

shall be considered discrimination, for purposes of section

12132 of this title and section 794 of Title 29, for such entity

to purchase or lease a new vehicle for use on such system, for

which a solicitation is made after the 30th day following July

26, 1990, that is not readily accessible to and usable by indi-

viduals with disabilities, including individuals who use

wheelchairs, unless such system, when viewed in its en-

tirety, provides a level of service to such individuals

equivalent to the level of service such system provides to

individuals without disabilities.

§ 12145. Temporary relief where lifts are unavailable

(a) Granting

With respect to the purchase of new buses, a public entity

may apply for, and the Secretary may temporarily relieve

such public entity from the obligation under section 12142(a)

or 12144 of this title to purchase new buses that are readily

accessible to and usable by individuals with disabilities if

such public entity demonstrates to the satisfaction of the

Secretary—

(1) that the initial solicitation for new buses made by

the public entity specified that all new buses were to be

lift-equipped and were to be otherwise accessible to and

usable by individuals with disabilities;

(2) the unavailability from any qualified manufac-

turer of hydraulic, electromechanical, or other lifts for

such new buses;

-

(3) that the public entity seeking temporary relief

has made good faith efforts to locate a qualified manufac-

18d

turer to supply the lifts to the manufacturer of such buses

in sufficient time to comply with such solicitation; and

(4) that any further delay in purchasing new buses

necessary to obtain such lifts would significantly impair

transportation services in the community served by the

public entity.

(b) Duration and notice to Congress

Any relief granted under subsection (a) of this section

shall be limited in duration by a specified date, and the ap-

propriate committees of Congress shall be notified of any

such relief granted.

(c) Fraudulent application

If, at any time, the Secretary has reasonable cause to be-

lieve that any relief granted under subsection (a) of this sec-

tion was fraudulently applied for, the Secretary shall—

(1) cancel such relief if such relief is still in effect; and

(2) take such other action as the Secretary considers

appropriate.

§ 12146. New facilities

For purposes of section 12132 of this title and section 794

of Title 29, it shall be considered discrimination for a public

entity to construct a new facility to be used in the provision

of designated public transportation services unless such fa-

cility is readily accessible to and usable by individuals with

disabilities, including individuals who use wheelchairs.

§ 12147. Alterations of existing facilities

(a) General rule

With respect to alterations of an existing facility or part

thereof used in the provision of designated public transpor-

tation services that affect or could affect the usability of the

19d

facility or part thereof, it shall be considered discrimination,

for purposes of section 12132 of this title and section 794 of

Title 29, for a public entity to fail to make such alterations

(or to ensure that the alterations are made) in such a manner

that, to the maximum extent feasible, the altered portions of

the facility are readily accessible to and usable by individuals

with disabilities, including individuals who use wheelchairs,

upon the completion of such alterations. Where the public

entity is undertaking an alteration that affects or could affect

usability of or access to an area of the facility containing a

primary function, the entity shall also make the alterations

in such a manner that, to the maximum extent feasible, the

path of travel to the altered area and the bathrooms,

telephones, and drinking fountains serving the altered area,

are readily accessible to and usable by individuals with

disabilities, including individuals who use wheelchairs, upon

completion of such alterations, where such alterations to the

path of travel or the bathrooms, telephones, and drinking

fountains serving the altered area are not disproportionate

to the overall alterations in terms of cost and scope (as

determined under criteria established by the Attorney

General).

(b) Special rule for stations

(1) General rule

For purposes of section 12132 of this title and section

794 of Title 29, it shall be considered discrimination for a

public entity that provides designated public transporta-

tion to fail, in accordance with the provisions of this sub-

section, to make key stations (as determined under criteria

established by the Secretary by regulation) in rapid rail

and light rail systems readily accessible to and usable by

individuals with disabilities, including individuals who use

wheelchairs.

20d

(2) Rapid rail and light rail key stations

(A) Accessibility

Except as otherwise provided in this paragraph, all

key stations (as determined under criteria established

by the Secretary by regulation) in rapid rail and light

rail systems shall be made readily accessible to and

usable by individuals with disabilities, including indi-

viduals who use wheelchairs, as soon as practicable but

in no event later than the last day of the 3-year period

beginning on July 26, 1990.

(B) Extension for extraordinarily expensive struc-

tural changes

The Secretary may extend the 3-year period under

subparagraph (A) up to a 30-year period for key sta-

tions in a rapid rail or light rail system which stations

need extraordinarily expensive structural changes to,

or replacement of, existing facilities; except that by the

last day of the 20th year following July 26, 1990, at

least 2/3 of such key stations must be readily accessible

to and usable by individuals with disabilities.

(3) Plans and milestones

The Secretary shall require the appropriate public en-

tity to develop and submit to the Secretary a plan for

compliance with this subsection—

(A) that reflects consultation with individuals

with disabilities affected by such plan and the results of

a public hearing and public comments on such plan, and

(B) that establishes milestones for achievement of

the requirements of this subsection.

er

21d

§ 12148. Public transportation programs and activities

in existing facilities and one car per train

rule

(a) Public transportation programs and activities in exist-

ing facilities

(1) In general

With respect to existing facilities used in the provision

of designated public transportation services, it shall be

considered discrimination, for purposes of section 12132 of

this title and section 794 of Title 29, for a public entity to

fai] to operate a designated public transportation program

or activity conducted in such facilities so that, when

viewed in the entirety, the program or activity is readily

accessible to and usable by individuals with disabilities.

(2) Exception

Paragraph (1) shall not require a public entity to make

structural changes to existing facilities in order to make

such facilities accessible to individuals who use wheel-

chairs, unless and to the extent required by section

12147(a) of this title (relating to alterations) or section

12147(b) of this title (relating to key stations).

(3) Utilization

Paragraph (1) shall not require a public entity to which

paragraph (2) applies, to provide to individuals who use

wheelchairs services made available to the general public

at such facilities when such individuals could not utilize or

benefit from such services provided at such facilities.

(b) One car per train rule

(1) General rule

Subject to paragraph (2), with respect to 2 or more ve-

hicles operated as a train by a light or rapid rail system,

22d

for purposes of section 12132 of this title and section 794

of Title 29, it shall be considered discrimination for a

public entity to fail to have at least 1 vehicle per train that

is accessible to individuals with disabilities, including in-

dividuals who use wheelchairs, as soon as practicable but

in no event later than the last day of the 5-year period be-

ginning on the effective date of this section.

(2) Historic trains

In order to comply with paragraph (1) with respect to

the remanufacture of a vehicle of historic character which

is to be used on a segment of a light or rapid rail system

which is included on the National Register of Historic

Places, if making such vehicle readily accessible to and

usable by individuals with disabilities would significantly

alter the historic character of such vehicle, the public en-

tity which operates such system only has to make (or to

purchase or lease a remanufactured vehicle with) those

modifications which are necessary to meet the require-

ments of section 12142(c)(1) of this title and which do not

significantly alter the historic character of such vehicle.

§ 12149. Regulations

(a) In general

Not later than 1 year after July 26, 1990, the Secretary of

Transportation shall issue regulations, in an accessible for-

mat, necessary for carrying out this subpart (other than sec-

tion 12143 of this title).

(b) Standards

The regulations issued under this section and section

12143 of this title shall include standards applicable to facili-

ties and vehicles covered by this part. The standards shall

be consistent with the minimum guidelines and requirements

issued by the Architectural and Transportation Barriers

23d

Compliance Board in accordance with section 12204 of this

title.

§ 12150. Interim accessibility requirements

If final regulations have not been issued pursuant to sec-

tion 12149 of this title, for new construction or alterations for

which a valid and appropriate State or local building permit

is obtained prior to the issuance of final regulations under

such section, and for which the construction or alteration

authorized by such permit begins within one year of the

receipt of such permit and is completed under the terms of

such permit, compliance with the Uniform Federal Accessi-

bility Standards in effect at the time the building permit is

issued shall suffice to satisfy the requirement that facilities

be readily accessible to and usable by persons with disabili-

ties as required under sections 12146 and 12147 of this title,

except that, if such final regulations have not been issued

one year after the Architectural and Transportation Barriers

Compliance Board has issued the supplemental minimum

guidelines required under section 12204(a) of this title, com-

pliance with such supplemental minimum guidelines shall be

necessary to satisfy the requirement that facilities be readily

accessible to and usable by persons with disabilities prior to

issuance of the final regulations.

§ 12161. Definitions

As used in this subpart:

(1) Commuter authority

The term “commuter authority” has the meaning given

such term in section 502(8) of Title 45.

24d

(2) Commuter rail transportation

The term “commuter rail transportation” has the

meaning given the term “commuter rail passenger trans-

portation” in section 502(9) of Title 45.

(3) Intercity rail transportation

The term “intercity rail transportation” means trans-

portation provided by the National Railroad Passenger

Corporation.

(4) Rail passenger car

The term “rail passenger car” means, with respect to

intercity rai] transportation, single-level and bi-level

coach cars, single-level and bi-level dining cars, single-

level and bi-level sleeping cars, single-level and bi-level

lounge cars, and food service cars.

(5) Responsible person

The term “responsible person” means—

(A) in the case of a station more than 50 percent

of which is owned by a public entity, such public entity;

(B) in the case of a station more than 50 percent

of which is owned by a private party, the persons pro-

viding intercity or commuter rail transportation to such

station, as allocated on an equitable basis by regulation

by the Secretary of Transportation; and

(C) in a case where no party owns more than 50

percent of a station, the persons providing intercity or

commuter rail transportation to such station and the

owners of the station, other than private party owners,

as allocated on an equitable basis by regulation by the

Secretary of Transportation.

(6) Station

The term “station” means the portion of a property lo-

cated appurtenant to a right-of-way on which intercity or

commuter rail transportation is operated, where such por-

tion is used by the general public and is related to the

provision of such transportation, including passenger

platforms, designated waiting areas, ticketing areas,

restrooms, and, where a public entity providing rail

transportation owns the property, concession areas, to the

extent that such public entity exercises contro] over the

selection, design, construction, or alteration of the

property, but such term does not include flag stops.

§ 12162. Intercity and commuter rail actions consid-

ered discriminatory

(a) Intercity rail transportation

(1) One car per train rule

It shall be considered discrimination for purposes of

section 12132 of this title and section 794 of Title 29 for a

person who provides intercity rail transportation to fail to

have at least one passenger car per train that is readily

accessible to and usable by individuals with disabilities,

including individuals who use wheelchairs, in accordance

with regulations issued under-section 12164 of this title, as

soon as practicable, but in no event later than 5 years af-

ter July 26, 1990.

(2) New intercity cars

(A) General rule

Except as otherwise provided in this subsection

with respect to individuals who use wheelchairs, it

shall be considered discrimination for purposes of sec-

tion 12132 of this title and section 794 of Title 29 for a

26d

person to purchase or lease any new rail passenger

cars for use in intercity rail transportation, and for

which a solicitation is made later than 30 days after

July 26, 1990, unless all such rail cars are readily ac-

cessible to and usable by individuals with disabilities,

including individuals who use wheelchairs, as pre-

scribed by the Secretary of Transportation in regula-

tions issued under section 12164 of this title.

(B) Special rule for single-level passenger coaches

for individuals who use wheelchairs

Single-level passenger coaches shall be required

to—

(i) be able to be entered by an individual

who uses a wheelchair;

(ii) have space to park and secure a wheel-

chair;

(ili) have a seat to which a passenger in a

wheelchair can transfer, and a space to fold and

store such passenger’s wheelchair; and

(iv) have a restroom usable by an individual

who uses a wheelchair,

only to the extent provided in paragraph (3).

(C) Special rule for single-level dining cars for indi-

viduals who use wheelchairs

Single-level dining cars shall not be required to—

(i) be able to be entered from the station

platform by an individual who uses a wheelchair;

or

(ii) have a restroom usable by an individual

who uses a wheelchair if no restroom is provided

in such car for any passenger.

27d

(D) Special rule for bi-level dining cars for indi-

viduals who use wheelchairs

Bi-level dining cars shall not be required to—

(i) be able to be entered by an individual

who uses a wheelchair;

(ii) have space to park and secure a wheel-

chair;

(iii) have a seat to which a passenger in a

wheelchair can transfer, or a space to fold and

store such passenger’s wheelchair; or

(iv) have a restroom usable by an individual

who uses a wheelchair.

(3) Accessibility of single-level coaches

(A) General rule

It shall be considered discrimination for purposes

of section 12132 of this title and section 794 of Title 29

for a person who provides intercity rail transportation

to fail to have on each train which includes one or

more single-level rail passenger coaches—

(i) anumber of spaces—

(I) to park and secure wheelchairs (to

accommodate individuals who wish to remain in

their wheelchairs) equal to not less than

one-half of the number of single-level rail pas-

senger coaches in such train; and

(II) to fold and store wheelchairs (to ac-

commodate individuals who wish to transfer to

coach seats) equal to not less than one-half of

the number of single-level rail passenger

coaches in such train,

28d

as soon as practicable, but in no event later than 5

years after July 26, 1990; and

(ii) anumber of spaces—

(I) to park and secure wheelchairs (to

accommodate individuals who wish to remain in

their wheelchairs) equal to not less than the

total number of single-level rail passenger

coaches in such train; and

(II) to fold and store wheelchairs (to ac-

commodate individuals who wish to transfer to

coach seats) equal to not less than the total

number of single-level rail passenger coaches in

such train,

as soon as practicable, but in no event later than 10

years after July 26, 1990.

(B) Location

Spaces required by subparagraph (A) shall be lo-

cated in single-level rail passenger coaches or food

service cars.

(C) Limitation

Of the number of spaces required on a train by

subparagraph (A), not more than two spaces to park

and secure wheelchairs nor more than two spaces to

fold and store wheelchairs shall] be located in any one

coach or food service car. .

(D) Other accessibility features

Single-level rail passenger coaches and food serv-

ice cars on which the spaces required by subparagraph

(A) are located shall have a restroom usable by an

individual who uses a wheelchair and shall be able to

(4)

29d

be entered from the station platform by an individual

who uses a wheelchair.

Food service

(A) Single-level dining cars

On any train in which a single-level dining car is

used to provide food service—

(i) if such single-level dining car was purchased

after July 26, 1990, table service in such car shall be

provided to a passenger who uses a wheelchair if—

(I) the car adjacent to the end of the dining

car through which a wheelchair may enter is itself

accessible to a wheelchair;

(II) such passenger can exit to the platform

from the car such passenger occupies, move down

the platform, and enter the adjacent accessible

ear described in subclause (I) without the

necessity of the train being moved within the sta-

tion; and

(III) space to park and secure a wheelchair

is available in the dining car at the time such pas-

senger wishes to eat (if such passenger wishes to

remain in a wheelchair), or space to store and fold

a wheelchair is available in the dining car at the

time such passenger wishes to eat (if such pas-

senger wishes to transfer to a dining car seat);

and

(ii) appropriate auxiliary aids and services, in-

cluding a hard surface on which to eat, shall be pro-

vided to ensure that other equivalent food service is

available to individuals with disabilities, including

individuals who use wheelchairs, and to passengers

traveling with such individuals.

30d

Unless not practicable, a person providing intercity rail

transportation shall place an accessible car adjacent to the

end of a dining car described in clause (i) through which an

individual who uses a wheelchair may enter.

(B) Bi-level dining cars \

On any train in which a bi-level dining car is used

to provide food service—

(i) if such train includes a bi-level lounge car

purchased after July 26, 1990, table service in such

lounge car shall be provided to individuals who use

wheelchairs and to other passengers; and

(ii) appropriate auxiliary aids and services, in-

cluding a hard surface on which to eat, shall be pro-

vided to ensure that other equivalent food service is

available to individuals with disabilities, including

individuals who use wheelchairs, and to passengers

traveling with such individuals.

(b) Commuter rail transportation

(1) One car per train rule

It shall be considered discrimination for purposes of

section 12132 of this title and section 794 of Title 29 for a

person who provides commuter rail transportation to fail

to have at least one passenger car per train that is readily

accessible to and usable by individuals with disabilities,

including individuals who use wheelchairs, in accordance

with regulations issued under section 12164 of this title, as

soon as practicable, but in no event later than 5 years af-

ter July 26, 1990.

31d

(2) New commuter rail cars

(A) General rule

It shall be considered discrimination for purposes of

section 12132 of this title and section 794 of Title 29 for

a person to purchase or lease any new rail passenger

ears for use in commuter rail transportation, and for

which a solicitation is made later than 30 days after

July 26, 1990, unless all such rail cars are readily acces-

sible to and usable by individuals with disabilities, in-

cluding individuals who use wheelchairs, as prescribed

by the Secretary of Transportation in regulations is-

sued under section 12164 of this title.

(B) Accessibility

For purposes of section 12132 of this title and sec-

tion 794 of Title 29, a requirement that a rail passenger

car used in commuter rail transportation be accessible

to or readily accessible to and usable by individuals

with disabilities, including individuals who use

wheelchairs, shall not be construed to require—

(i) a restroom usable by an individual who

uses a wheelchair if no restroom is provided in such

car for any passenger;

(ii) space to fold and store a wheelchair; or

(iii) a seat to which a passenger who uses a

wheelchair can transfer.

(c) Used rail cars

It shall be considered discrimination for purposes of sec-

tion 12132 of this title and section 794 of Title 29, for a person

to purchase or lease a used rail passenger car for use in in-

tercity or commuter rail transportation, unless such person

makes demonstrated good faith efforts to purchase or lease a

t«

32d

used rail car that is readily accessible to and usable by in-

dividuals with disabilities, including individuals who use

wheelchairs, as prescribed by the Secretary of Transporta-

tion in regulations issued under section 12164 of this title.

(d) Remanufactured rail cars

(1) Remanufacturing

It shall be considered discrimination for purposes of

section 12132 of this title and section 794 of Title 29 for a

person to remanufacture a rail passenger car for use in in-

tercity or commuter rail transportation so as to extend its

usable life for 10 years or more, unless the rail car, to the

maximum extent feasible, is made readily accessible to and

usable by individuals with disabilities, including individuals

who use wheelchairs, as prescribed by the Secretary of

Transportation in regulations issued under section 12164 of

this title.

(2) Purchase or lease

It shall be considered discrimination for purposes of

section 12132 of this title and section 794 of Title 29 for a

person to purchase or lease a remanufactured rail passen-

ger car for use in intercity or commuter rail transportation

unless such car was remanufactured in accordance with

paragraph (1).

(e) Stations

(1) New stations

It shall be considered discrimination for purposes of

section 12132 of this title and section 794 of Title 29 for a

person to build a new station for use in intercity or com-

muter rai] transportation that is not readily accessible to

and usable by individuals with disabilities, including indi-

viduals who use wheelchairs, as prescribed by the Secre-

33d

tary of Transportation in regulations issued under section

12164 of this title.

(2) Existing stations

(A) Failure to make readily accessible

(i) General rule

It shall be considered discrimination for pur-

poses of section 12132 of this title and section 794

of Title 29 for a responsible person to fail to make

existing stations in the intercity rail transporta-

tion system, and existing key stations in commuter

rail transportation systems, readily accessible to

and usable by individuals with disabilities, in-

cluding individuals who use wheelchairs, as pre-

scribed by the Secretary of Transportation in

regulations issued under section 12164 of this title.

(ii) Period for compliance

(I) Intercity rail

All stations in the intercity rail transpor-

tation system shall be made readily accessible

to and usable by individuals with disabilities,

including individuals who use wheelchairs, as

soon as practicable, but in no event later than

20 years after July 26, 1990.

(il) Commuter rail

Key stations in commuter rail transpor-

tation systems shall be made readily accessible

to and usable by individuals with disabilities,

including individuals who use wheelchairs, as

soon as practicable but in no event later than 3

years after July 26, 1990, except that the time

limit may be extended by the Secretary of

34d

Transportation up to 20 years after July 26,

1990, in a case where the raising of the entire

passenger platform is the only means available

of attaining accessibility or where other ex-

traordinarily expensive structural changes are

necessary to attain accessibility.

(iii) Designation of key stations

Each commuter authority shall designate the

key stations in its commuter rail transportation

system, in consultation with individuals with dis-

abilities and organizations representing such in-

dividuals, taking into consideration such factors as

high ridership and whether such station serves as

a transfer or feeder station. Before the final des-

ignation of key stations under this clause, a com-

muter authority shall hold a public hearing.

(iv) Plans and milestones

The Secretary of Transportation shall require

the appropriate person to develop a plan for car-

rying out this subparagraph that reflects consul-

tation with individuals with disabilities affected by

such plan and that establishes milestones for

achievement of the requirements of this subpara-

graph.

Requirement when making alterations

(i) General rule

It shall be considered discrimination, for pur-

poses of section 12132 of this title and section 794

of Title 29, with respect to alterations of an exist-

ing station or part thereof in the intercity or

commuter rail transportation systems that affect

or could affect the usability of the station or part

35d

thereof, for the responsible person, owner, or per-

son in control of the station to fai] to make the al-

terations in such a manner that, to the maximum

extent feasible, the altered portions of the station

are readily accessible to and usable by individuals

wit!: disabilities, including individuals who use

wheelchairs, upon completion of such alterations.

(ii) Alterations to a primary function area

It shall be considered discrimination, for pur-

poses of section 12132 of this title and section 794

of Title 29, with respect to alterations that affect

_or could affect the usability of or access to an area

of the station containing a primary function, for

the responsible person, owner, or person in control

of the station to fail to make the alterations in such

a manner that, to the maximum extent feasible,

the path of travel to the altered area, and the bath-

rooms, telephones, and drinking fountains serving

the altered area, are readily accessible to and us-

able by individuals with disabilities, including in-

dividuals who use wheelchairs, upon completion of

such alterations, where such alterations to the

path of travel or the bathrooms, telephones, and

drinking fountains serving the altered area are not

disproportionate to the overall alterations in terms

of cost and scope (as determined under criteria

established by the Attorney General).

(C) Required cooperation

It shall be considered discrimination for purposes

of section 12132 of this title and section 794 of Title 29

for an owner, or person in control, of a station gov-

erned by subparagraph (A) or (B) to fail to provide

reasonable cooperation to a responsible person with

36d

respect to such station in that responsible person’s ef-

forts to comply with such subparagraph. An owner, or

person in control, of a station shall be liable to a re-

sponsible person for any failure to provide reasonable

cooperation as required by this subparagraph. Failure

to receive reasonable cooperation required by this

subparagraph shal] not be a defense to a claim of dis-

crimination under this chapter.

§ 12163. Conformance of accessibility standards

Accessibility standards included in regulations issued un-

der this subpart shall be consistent with the minimum

guidelines issued by the Architectural and Transportation

Barriers Compliance Board under section 12204(a) of this

§ 12164. Regulations

Not later than 1 year after July 26, 1990, the Secretary of

Transportation shall issue regulations, in an accessible

format, mecessary for carrying out this subpart.

§ 12165. Interim accessibility requirements

(a) Stations

If final regulations have not been issued pursuant to sec-

tion 12164 of this title, for mew construction or alterations for

which a valid and appropriate State or local building permit

is obtained prior to the issuance of final regulations under

such section, and for which the construction or alteration

authorized by such permit begins within one year of the

receipt of such permit and is completed under the terms of

such permit, compliance with the Uniform Federal Accessi-

bility Standards in effect at the time the building permit is

issued shal] suffice to satisfy the requirement that stations

be readily accessible to and usable by persons with disabili-

37d

ties as required under section 12162(e) of this title, except

that, if such final regulations have not been issued one year

after the Architectural and Transportation Barriers Com-

pliance Board has issued the supplemental minimum guide-

lines required under section 12204(a) of this title, compliance

with such supplemental minimum guidelines shall be neces-

sary to satisfy the requirement that stations be readily ac-

cessible to and usable by persons with disabilities prior to

issuance of the final regulations.

(b) Rail passenger cars

If final regulations have not been issued pursuant to sec-

tion 12164 of this title, a person shall be considered to have

complied with the requirements of section 12162(a) through

(d) of this title that a rail passenger car be readily accessible

to and usable by individuals with disabilities, if the design for

such car complies with the laws and regulations (including

the Minimum Guidelines and Requirements for Accessible

Design and such supplemental minimum guidelines as are

issued under section 12204(a) of this title) governing accessi-

bility of such cars, to the extent that such laws and regula-

tions are not inconsistent with this subpart and are in effect

at the time such design is substantially completed.

38d

Title IV of The Americans With Disabilities Act

§ 12201. Construction

(a) In general

Except as otherwise provided in this chapter, nothing in

this chapter shall be construed to apply a lesser standard

than the standards applied under title V of the Rehabilita-

tion Act of 1973 (29 U.S.C. 790 et seq.) or the regulations

issued by Federal agencies pursuant to such title.

(b) Relationship to other laws

Nothing in this chapter shall be construed to invalidate or

limit the remedies, rights, dnd procedures of any Federal law

or law of any State or political subdivision of any State or

jurisdiction that provides greater or equal protection for the

rights of individuals with disabilities than are afforded by

this chapter. Nothing in this chapter shal] be construed to

preclude the prohibition of, or the imposition of restrictions

on, smoking in places of employment covered by subchapter

| of this chapter, in transportation covered by subchapter I]

or III of this chapter, or in plaees of public accommodation

covered by subchapter III of this chapter.

(€) Insurance

Subchapters I through III of this chapter and title IV of

this Act shall not be comstrued to prohibit or restrict— |

(1) an imsurer, hospital or medica] service company,

health maintenance organization, or any agent, or entity that

administers benefit plans, or similar organizations from

underwriting risks, classifying risks, or administering such

risks that are based on or not inconsistent with State law; or

39d

(2) aperson or organization covered by this chapter from

establishing, sponsoring, observing or administering the

terms of a bona fide benefit plan that are based on

underwriting risks, classifying risks, or administering such

risks that are based on or not inconsistent with State law; or

(3) a person or organization covered by this chapter from

establishing, sponsoring, observing or administering the

terms of a bona fide benefit plan that is not subject to State

laws that regulate insurance.

Paragraphs (1), (2), and (3) shall not be used as a

subterfuge to evade the purposes of subchapter’ I and III of

this chapter.

(d) Accommodations and services

Nothing in this chapter shal] be construed to require an

individual with a disability to aceept an accommodation, aid,

service, opportunity, or benefit which such individual

chooses not to accept.

§ 12202. State immunity

A State shall not be immune under the eleventh

amendment to the Constitution of the United States from an

action in’ Federal or State court of competent jurisdiction

for a violation of this chapter. In any action against a State

for a violation of the requirements of this chapter, remedies

(including remedies both at law and in equity) are available

for such a violation to the same extent as such remedies are

available for such a violation in an action against any public

or private entity other than a State.

2 So in original. Probably should be “subchapters”.

3 So in original. Probably should be “in a”.

40d

§ 12203. Prohibition against retaliation and coercion

(a) Retaliation

No person shall discriminate against any individual

because such individual has opposed any act or practice

made unlawful by this chapter or because such individual

made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under

this chapter.

(b) Interference, coercion, or intimidation

It shall be unlawful to coerce, intimidate, threaten, or

interfere with any individual in the exercise or enjoyment of,

or on account of his or her having exercised or enjoyed, or on

account of his or her having aided or encouraged any other

individual! in the exercise or enjoyment of, any right granted

or protected by this chapter.

(c) Remedies and procedures

The remedies and procedures available under sections

12117, 12133, and 12188 of this title shall be available to

aggrieved persons for violations of subsections (a) and (b) of

this section, with respect to subchapter I, subchapter II and

subchapter III of this chapter, respectively.

§ 12204. Regulations by Architectural and Transpor-

tation Barriers Compliance Board

(a) Issuance of guidelines

Not later than 9 months after July 26, 1990, the Architec-

tural and Transportation Barriers Compliance Board shall

issue minimum guidelines that shall supplement the existing

Minimum Guidelines and Requirements for Accessible

4ld

Design for purposes of subchapters II and III of this

chapter.

(b) Contents of guidelines

The supplemental guidelines issued under subsection (a)

of this section shall establish additional requirements,

consistent with this chapter, to ensure that buildings,

facilities, rail passenger cars, and vehicles are accessible, in

terms of architecture and design, transportation, and

communication, to individuals with disabilities.

(c) Qualified historic properties

(1) In general

The supplemental guidelines issued under subsection (a)

of this section shall include procedures and requirements for

alterations that will threaten or destroy the historic

significance of qualified historic buildings and facilities as

defined in 4.1.7(1)(a) of the Uniform Federal Accessibility

Standards.

(2) Sites eligible for listing in National Register

With respect to alterations of buildings or facilities that

are eligible for listing in the National Register of Historic

Places under the National Historic Preservation Act (16

U.S.C. 470 et seq.), the guidelines described in paragraph (1)

shall, at a minimum, maintain the procedures and require-

ments °stablished in 4.1.7(1) and (2) of the Uniform Federal

Accessibility Standards.

42d

(3) Other sites

With respect to alterations of buildings or facilities desig-

nated as historic under State or local law, the guidelines

described in paragraph (1) shal] establish procedures equiva-

lent to those established by 4.1.7(1)(b) and (c) of the Uniform

Federal Accessibility Standards, and shall require, at a

minimum, compliance with the requirements established in

4.1.7(2) of such standards.

§ 12205. Attorney’s fees

In any action or administrative proceeding commenced

pursuant to this chapter, the court or agency, in its discre-

tion, may allow the prevailing party, other than the United

States, a reasonable attorney’s fee, including litigation

expenses, and costs, and the United States shall be liable for

the foregoing the same as a private individual.

§ 12206. Technical assistance

(c) Plan for assistance

(1) In general

Not later than 180 days after July 26, 1990, the

Attorney General. in consultation with the Chair of the

Equal Employment Opportunity Commission, the

Secretary of Transportation, the Chair of the Architec-

tural and Transportation Barriers Compliance Board, and

the Chairman of the Federal Communications Commis-

sion, shall develop a plan to assist entities covered under

this chapter, and other Federal agencies, in under-

standing the responsibility of such entities and agencies

under this chapter.

(2) Publication of plan

The Attorney General shall publish the plan referred to

in paragraph (1) for public comment in accordance with

subchapter II of chapter 5 of title 5 (commonly known as

the Administrative Procedure Act).

(b) Agency and public assistance

The Attorney General may obtain the assistance of other

Federal agencies in carrying out subsection (a) of this

section, including the National Council on Disability, the

President’s Committee on Employment of People with

Disabilities, the Small Business Administration, and the

Department of Commerce.

(c) Implementation

(1) Rendering assistance

Each Federal agency that has responsibility under

paragraph (2) for implementing this chapter may render

technical assistance to individuals and institutions that

have rights or duties under the respective subchapter or

subchapters of this chapter for which such agency has

responsibility.

(2) Implementation of subchapters

(A) Subchapter I

The Equal Employment Opportunity Commission

and the Attorney General shall implement the plan for

assistance developed under subsection (a) of this

section, for subchapter I of this chapter.

44d

(B) Subchapter II

(i) PartA

The Attorney General shall implement such plan

for assistance for part A of subchapter II of this

chapter.

- (ii) PartB

The Secretary of Transportation shall implement

such plan for assistance for part B subchapter II of

this chapter.

(C) Subchapter III

The Attorney General, in coordination with

Secretary of Transportation and the Chair of the

Architectural Transportation Barriers Compliance

Board, shall implement such plan for assistance for

subchapter III of this chapter, except for section 12184

of this title, the plan for assistance for which shall be

implemented by the Secretary of Transportation.

(D) Title IV

The Chairman of the Federal Communications

Commission, in coordinate with the Attorney General,

shall implement such plan for assistance for title IV.

(3) Technical assistance manuals

Each Federal agency that has responsibility under

paragraph (2) for implementing this chapter shall, as part

of its implementation responsibilities, ensure the avail-

ability and provision of appropriate technical assistance

manuals to individuals or entities with rights or duties

under this chapter no later than six months after applica-

45d

ble final regulations are published under subchapters I,

II, and III of this chapter and title IV.

(d) Grants and contracts

(1) In general

Each Federal agency that has responsibility under

subsection (c)(2) of this section for implementing this

chapter may make grants or award contracts to effectuate

the purposes of this section, subject to the availability of

appropriations. Such grants and contracts may be

awarded to individuals, institutions not organized for

profit and no part of the net earnings of which inures to

the benefit or any private shareholder or individual (in-

cluding educational institutions), and associations

representing individuals who have rights or duties under

this chapter. Contracts may be awarded to entities

organized for profit, but such entities may not be the

recipients or’ grants described in this paragraph.

(2) Dissemination of information

Such grants and contracts, among other uses, may be

designed to ensure wide dissemination of information

about the rights and duties established by this chapter

and to provide information and technical assistance about

techniques for effective compliance with this chapter.

(e) Failure to receive assistance

An employer, public accommodation, or other en

This text is long and has been trimmed here. Open the source document for the complete record.