REHABILITATING SECTION 504
February 12, 2003
National Council on Disability
1331 F Street, NW, Suite 850
Washington, DC 20004
This report is also available in alternative
formats and on NCD's award-winning Web site at www.ncd.gov
Publication date: February 12, 2003
202-272-2004 Voice
202-272-2074 TTY
202-272-2022 Fax
The views contained in this report do not necessarily
represent those of the Administration as this and all NCD reports
are not subject to the A-19 Executive Branch review process.
Letter of Transmittal
February 12, 2003
The President
The White House
Washington, DC 20500
Dear Mr. President:
On behalf of the National Council on Disability (NCD),
I am submitting a report entitled Rehabilitating Section 504.
This report is one of a series of independent analyses by NCD of
federal enforcement of civil rights laws.
The series grew out of NCD's 1996 national policy
summit, attended by more than 300 disability community leaders from
diverse backgrounds, who called upon NCD to work with federal agencies
to develop strategies for greater enforcement of existing disability
civil rights laws. This report looks at the Section 504 of the Rehabilitation
Act of 1973 enforcement activities of five key federal agencies:
the Department of Education, the Department of Labor, the Department
of Health and Human Services, the Department of State, and the Department
of Justice. NCD's findings reveal that while the Federal Government
has consistently asserted its strong support for the civil rights
of people with disabilities, the federal agencies charged with enforcement
and policy development under Section 504 have, to varying degrees,
lacked any coherent and unifying national leadership, coordination,
accountability, and funding.
This report provides a blueprint for addressing the
shortcomings that have hindered Section 504 compliance and enforcement
until now. Among the various strategies and approaches to improve
Section 504, NCD recommends that the Federal Government conduct
periodic and thorough Section 504 self- evaluations; improve data
collection and dissemination of data about Section 504 enforcement
efforts; bolster Department of Justice resources and guidance to
federal agencies on Section 504 enforcement; and apply successful
practices in Section 504 technical assistance and enforcement used
by federal agencies.
NCD stands ready to work with our sister agencies
and other stakeholders inside and outside the government to develop
these strategies. We look to the next decade of enforcement with
anticipation that the promise of Section 504 can and will be realized.
Sincerely,
Lex Frieden
Chairperson
(The same letter of transmittal was sent to the President
Pro Tempore of the U.S. Senate and the Speaker of the U.S. House
of Representatives.)
National Council on Disability
Members and Staff
Members
Lex Frieden, Chairperson
Patricia Pound, First Vice Chairperson
Glenn Anderson, Ph.D., Second Vice Chairperson
Milton Aponte
Robert R. Davila, Ph.D.
Barbara Gillcrist
Graham Hill
Joel I. Kahn
Young Woo Kang, Ph.D.
Kathleen Martinez
Carol Hughes Novak
Marco Rodriguez
David Wenzel
Linda Wetters
Kate Pew Wolters
Staff
Ethel D. Briggs, Executive Director
Jeffrey T. Rosen, General Counsel and Director of Policy
Mark S. Quigley, Director of Communications
Allan W. Holland, Chief Financial Officer
Julie Carroll, Attorney Advisor
Joan M. Durocher, Attorney Advisor
Martin Gould, Ed.D., Senior Research Specialist
Gerrie Drake Hawkins, Ph.D., Program Specialist
Pamela O'Leary, Interpreter
Brenda Bratton, Executive Assistant
Stacey S. Brown, Staff Assistant
Carla Nelson, Office Automation Clerk
Acknowledgments
This report is the product of a team effort and incorporates
the work of several people. The preliminary research, interviews,
and document acquisition were conducted through a contract with
Ardinger Consultants & Associates, Inc. This initial work was undertaken
in an attempt to create a comprehensive report regarding the implementation
and enforcement of Section 504 across a number of federal agencies.
Because of the unevenness of some agencies' data and record systems,
however, it was necessary to scale back the scope of the work to
produce a snapshot view instead.
Bonnie Milstein, Michele Magar, and Sara Pratt handled
the task of assisting the National Council on Disability (NCD) in
refining the preliminary research results and findings to produce
a draft report.
Finally, NCD would like to thank the federal agency
personnel who gave their time during the development of this report.
Our appreciation is extended to the staff of the Department of Health
and Human Services, the Department of Education, the Department
of Labor, the Department of Justice, and the Department of State.
These federal agency personnel answered many questions, gathered
documents, and shared data with the research team. In addition,
they reviewed preliminary drafts of the contents of this document
for technical accuracy.
CONTENTS
Executive Summary
Introduction
Chapter I--The Origins of Section
504: The Initial Promise of Disability Rights
Chapter II--The Agencies' Administration
of Their Section 504 Programs
Chapter III-- Administrative
Enforcement of Section 504
Recommendations
Conclusions
Appendix--Mission of the National
Council on Disability
EXECUTIVE
SUMMARY
Our forefathers and mothers came to this country
because we offered unique legal guarantees of equal opportunity.
They got rich, and America got rich. Every time we expanded our
civil rights to include another oppressed minority, America got
richer. America is not rich in spite of civil rights. America
is rich because of civil rights.
Justin W. Dart, Jr.
Section 504 of the 1973 Rehabilitation Act is acknowledged
as the first national civil rights law to view the exclusion and
segregation of people with disabilities as discrimination and to
declare that the Federal Government would take a central role in
reversing and eliminating this discrimination. Section 504, which
prohibits federal agencies and federally funded programs from discriminating
on the basis of disability, was designed to promote and expand opportunities
for persons with a broad range of disabilities and offer broad-based
protection from unwarranted discrimination stemming from prejudice,
social stigmas, and negative assumptions about their ability to
fully participate in the mainstream of society.
Although there is some mystery as to how the language
of Section 504 became part of what was clearly intended to be a
funding bill, Section 504 would soon become the most important and
embattled provision in the entire Rehabilitation Act. Once the legislation
was passed, the pivotal question became whether Section 504 would
be enforced with strong administrative rules. It took nearly four
years with months of demonstrations and intense lobbying efforts
before a relatively tough set of government-wide coordinating regulations
was published by the U.S. Department of Health, Education and Welfare
(HEW) on April 28, 1977. Effective government-wide enforcement efforts
were further delayed when, in 1980, President Jimmy Carter issued
Executive Order 12250, which transferred lead agency authority to
the Department of Justice (DOJ). DOJ reissued government-wide enforcement
regulations on August 11, 1981, without changing the original HEW
regulations. Because the issuing of the government-wide regulations
was exceedingly slow, many federal agencies consequently delayed
issuing their own regulations, and, in some cases, legal action
was required to compel their issuance of Section 504 regulations.
The supposed remedy for segregated public services
and programs and the instrument for enforcing nondiscrimination,
the Rehabilitation Act and its contemporaneously enacted regulations,
unfortunately, were virtually dead on arrival. Because of the lack
of sufficient resources, leadership, implementation, and enforcement
of Section 504 and the trend of the courts to narrow the protections
and scope of disability civil rights, as well as misportrayals by
the media about the supposed overreaching of these laws, what once
was the centerpiece of independence for persons with disabilities
has become an afterthought.
This report is one of a series of independent analyses
by the National Council on Disability (NCD) of federal enforcement
of civil rights. It specifically focuses on the work that the Departments
of Labor, Education, State, and Health and Human Services have done
to ensure that recipients of their funding follow Section 504. For
the Departments of Education, Health and Human Services, and Labor,
the report analyzes the commitments that these agencies made in
their recent report to the President on their activities in response
to the Supreme Court's decision in Olmstead, in the context
of their Section 504 enforcement histories. In addition, it reviews
the role that DOJ has played through its Section 504 coordination
responsibilities and the impact that this coordination work has
had on the agencies' planning and management activities. Though
NCD set out to create a comprehensive assessment of the Section
504 activities of the federal agencies covered in this report, the
drastic unevenness of their Section 504 programs and data and record
systems required NCD to scale back the scope of the work to produce
a snapshot view instead.
Why Section 504 Still
Matters
NCD's evaluation of the effectiveness of Section 504
enforcement comes at an apt time. Many persons with disabilities
and their advocates have become concerned that federal agencies,
in shifting their primary focus to recent laws such as the Americans
with Disabilities Act (ADA), have left Section 504 behind. Indeed,
NCD has heard a number of federal civil rights staff justify the
lapse of Section 504 implementation on the basis that their ADA
enforcement programs obviate such need.
Why should interested parties care about Section 504
enforcement now that the ADA exists? There are several reasons why
the Federal Government should vigorously enforce Section 504 in
conjunction with the ADA:
Section 504 covers a number of entities and federally
funded activities not reached by the ADA.
Section 504 is intended to make certain that tax
dollars will not be used to establish, promote, or reinforce discrimination
against people with disabilities.
DOJ is selective about the disability rights cases
it pursues, often prosecuting only the most egregious cases or
those that are likely to have a significant impact in a particular
area. Thus, it is necessary to ensure that other federal agencies'
Section 504 enforcement programs serve as an available and muscular
tool in combating disability discrimination.
Government enforcement of Section 504 is particularly
important in light of recent Supreme Court decisions that limit
the scope of private civil rights enforcement. In Board of
Trustees of the University of Alabama v. Garrett, the Supreme
Court found that the ADA does not permit individuals to recover
money damages when a state violates Title I of the ADA.
Thus, people with disabilities continue to look to,
and must rely upon, effective enforcement of Section 504 to be able
to access important federal programs and services that are crucial
to their independence and success.
Where Do We Stand?
There is little disagreement that persons with disabilities
are far better off now than they were at the time Section 504 was
originated. As this study of the five federal agencies demonstrates,
from time to time real progress is achieved and laudable efforts
are being made on behalf of persons with disabilities. In spite
of these efforts, however, the anticipated results have not been
brought about. NCD finds that several decades after the publication
of the regulations, the five agencies present a very mixed record
of Section 504 enforcement. Several general themes emerge from NCD's
research findings:
Agencies have not maintained consistency in their
Section 504 programs' operational leadership and have given a
low priority to the enforcement of Section 504, and there are
significant differences in their enforcement efforts.
One of the weakest points in terms of Section 504
enforcement lies in the fact that none of the agencies examined
for this report have initiated funding terminations to enforce
Section 504 against grantees that violate the law. Congress provided
this remedy to give federal agencies the leverage they needed
to force recalcitrant grantees to stop using tax dollars in discriminatory
ways and to otherwise encourage voluntary compliance with the
law. It is likely that the Federal Government would be much further
along the road to eliminating discrimination based on disability
had it used the full arsenal and range of remedies provided by
Congress.
Agencies have given low priority to collecting and
analyzing Section 504 program data, and there are major differences
in their data efforts. None of the agencies have developed information
systems that comprehensively collect, aggregate, or summarize
detailed information about complaints or compliance reviews and
their outcomes. This information is important both to the public
and to consumers and recipients.
Agencies have not received and have not been able
to devote sufficient funding and resources to their Section 504
programs.
All five agencies, with the exception of the Department
of State, have invested significant resources in providing written
and verbal technical assistance to their grant recipients.
With respect to these general themes, the following
information reflects some of the findings for each of the federal
agencies reviewed for this report.
Department of Health and Human Services
On the basis of the data that the Department of Health
and Human Services (HHS) provided to NCD, there appears to be a
strong correlation between appropriations and complaint numbers.
When funding and staff levels for HHS dipped in the mid-1990s, so
did the level of their complaint and compliance work. Conversely,
in later years, when HHS appropriations increased for civil rights
enforcement, staffing numbers increased and so did the amount of
work performed. However, the number of complaints and compliance
reviews processed did not increase in exact proportion to staffing
levels.
The HHS Office for Civil Rights has a wide array of
technical assistance materials available online. The HHS Web site
contains references to a large number of technical assistance materials,
including complaint filing information, fact sheets, regulations,
and case summaries, and the information is easily accessed from
the HHS home page through a drop-down search menu that includes
"civil rights" and "disabilities."
Department of Education
The Department of Education (ED) is another large
enforcement agency that provided sufficient data on which to base
conclusions, showing a similar but not as strong a correlation between
appropriations and complaint numbers.
ED has a civil rights enforcement budget that is more
than two and a half times that of HHS and staff levels that are
three and a half times the staff level of HHS. ED also receives
about twice the number of complaints that HHS receives. ED's proportionately
greater resources for enforcement explain in part its prompt enforcement
timeframes and its ability to broaden its enforcement strategies.
ED has demonstrated noteworthy and successful efforts
to shorten the time it takes to conduct investigations. Quicker
investigations and resolutions result in increased confidence in
the investigation process, both by potential complainants and by
recipients of funding.
Department of Labor
The Department of Labor (DOL) has essentially seen
no increase in funding and no increase in enforcement activity.
The number of staff at DOL devoted to enforcement has dropped from
61 to a projected 48, a decrease of 21 percent. DOL's complaint
filings have also dropped and show no evidence of a rebound.
DOL's list of reasonable accommodation technical information,
provided by its Office of Disability Employment Policy (ODEP), deserves
special mention for its usefulness, as does the agency's Job Accommodation
Network.
Department of State
The Department of State has never had a Section 504
federally assisted program. It has not allocated any resources to
determine whether the recipients of its grant funds comply with
any of the civil rights laws.
Department of Justice
DOJ reorganized its enforcement of disability rights
in 1995 by moving most of its Section 504 enforcement program to
the agency's Disability Rights Section (DRS). The benefit of this
reorganization was that DRS could enforce both Title II of the ADA
and Section 504 against noncomplying state and local government
agencies. However, the reorganization did not result in DRS's using
the fund termination provisions of Section 504 with the agency's
own grant recipients (primarily court administration, criminal justice,
and corrections programs). Instead, DOJ left those programs within
the purview of its own Office for Civil Rights (OCR), which has
no effective Section 504 program.
DOJ has government-wide disability rights coordination
and review responsibilities that it has not effectively fulfilled.
It has not provided critical and effective leadership through the
Interagency Disability Coordinating Council (IDCC), which has never
met. While DOJ has published investigation and block grant review
guidance and has worked with agencies on individual policies and
cases, it has not provided or required the kind of guidance that
would have generated government-wide civil rights enforcement data.
Recommendations
1. Conduct periodic and thorough Section 504 self-evaluations.
The agencies that are the subject of this report should
routinely reevaluate programs using self- evaluation(s) that identify
challenges to full participation by people with disabilities in
their programs, policies, regulations, and practices. Moreover,
all the agencies should assess legislation they propose, policies
they intend to publish, and regulations they draft to ensure that
each affirmatively furthers the goals of Section 504.
2. Improve data collection and dissemination of data
about Section 504 enforcement activities.
People with disabilities want to easily read data
about agency 504 compliance. Such data include complaint filings
and compliance reviews initiated, specific Section 504 issues and
trends in complaint and compliance reviews, and outcomes and enforcement
actions. Routinely reporting 504 activities on agency Web sites
would publicize Section 504 and ADA accomplishments. DOJ should
support and assist agencies in developing and implementing more
effective data collection systems.
3. Use funding sanctions to enforce Section 504.
Congress included an effective remedy to address discrimination
on the basis of disability by recipients of federal funds. Thus
far, the agencies studied in this report have not used funding sanctions
to bring recipients into compliance with Section 504, although notice
of the possibility of sanctions is generally given as part of agency
enforcement processes. To combat disability discrimination in the
most effective way possible, federal agencies should use their sanctioning
authority, including making recipients ineligible to apply for continued
or new funding while they are not in compliance with federal civil
rights laws. This strategy could effectively be incorporated into
Notices of Funding Availability and program eligibility requirements,
so that no recipient or potential recipient can be funded while
a preliminary or final finding of noncompliance was pending. This
strategy should become an integral part of agency Section 504 enforcement
efforts. Agencies should also develop and apply a range of sanctions
to help bring recipients of federal funds into compliance with Section
504. Additionally, agencies should publicize their efforts to maximize
deterrence of violations of the rights of people with disabilities.
4. Direct agency civil rights enforcement by the assistant
secretary.
HHS and DOL should review the impact of ED's decision
to have an assistant secretary lead its OCR as a way of improving
the visibility and enforcement of Section 504 within each agency's
funding programs.
5. Increase funding for Section 504 enforcement.
This administration should continue to improve its
efforts to increase funding for civil rights enforcement. Presidential
budget requests and congressional appropriations for federal agency
civil rights enforcement should be adequate to staff those agencies
to conduct effective civil rights enforcement and compliance. Adequate
staffing is the most critical factor in providing prompt and effective
enforcement of Section 504. When appropriations--and staffing--drop,
the number of complaints investigated drop.
None of the three agencies has provided sufficient
staff, resources, or stature within their departments, or coordination
with other civil rights offices, for effective Section 504 programs.
6. Improve leadership and guidance to agencies on Section
504 enforcement.
The IDCC was created to provide critically needed
leadership of disability rights enforcement throughout the Federal
Government, but it has ceased to function. DOJ should revive the
IDCC. DOJ should provide substantive guidance to agencies to help
them enforce Section 504, including basic training and technical
assistance, updates on key court decisions, guidance on investigation
and resolution of Section 504 complaints, and information to help
agencies conduct effective Section 504 compliance reviews. DOJ should
create guidance specific to Section 504 enforcement that builds
on the agency's manuals on enforcement of Title VI and Title IX.
DOJ should use its authority under Executive Order 12550 to review
and comment on agency Annual Implementation Reports, assess progress
in agency activities, and make recommendations for improvements.
DOJ should also create and make publicly available summaries of
the information reported by federal agencies in their Annual Implementation
Reports, as well as highlights of the Federal Government's enforcement
of Section 504 compiled from other agency reports.
7. Apply successful practices in Section 504 technical
assistance and enforcement used by federal agencies.
During the course of its study, NCD encountered a
number of successful practices that should be reviewed by other
federal agencies. For instance, the HHS Web site is exemplary and
should be emulated in how it provides relevant Section 504 information
in a user-friendly format. The HHS online material is rich in detail
and includes helpful case studies and links to other relevant Web
sites. Agencies should also review and consider including in their
Web sites information similar to that provided by ED's technical
assistance guidance to recipients and DOL's list of reasonable accommodation
information resources. In addition, ED has successfully expanded
its Section 504 program resources and effectiveness in a number
of innovative ways. For example, it has encouraged parents and students
to monitor recipients' implementation of compliance agreements and
asked them to suggest changes to compliance agreements that have
made them produce better results for students with disabilities.
It has also established an intranet service that makes available
policies, decisions, law review articles, regulations, handbooks,
manuals, and letters for civil rights staff from different offices
to facilitate their communication with each other for the purpose
of expanding and improving the approaches they adopt to address
common and novel discrimination issues. This type of flexibility
and creativity has the potential to improve each federal agency's
Section 504 enforcement program.
Conclusion
NCD's report describes the successes, the weaknesses,
and the failures of five agencies' Section 504 enforcement programs
over the past three decades. Our research highlights some efficient
practices in the agencies' implementation and enforcement of Section
504 that should be carefully studied and more widely adopted to
remedy the unevenness across the Federal Government in Section 504
programs. While it is beyond doubt that Section 504 matters, it
is troubling that federal agencies have shown a lack of clear commitment
to ensure that Section 504 can be vigorously integrated into federal
agencies' newest mode of operations as evidenced by their recent
stated commitments to Olmstead and the New Freedom Initiative. NCD's
report contains recommendations that should be implemented in a
timely manner by these agencies, DOJ, and Congress in order to ensure
the effective, meaningful, and uniform enforcement of Section 504,
which has benefited least from the national commitment to its civil
rights laws. Implementation of these recommendations will help to
correct this historic oversight.
INTRODUCTION
As a remedy for segregated public services, the
Rehabilitation Act and its contemporaneously enacted regulation
have been practically a dead letter.
Timothy M. Cook, The Americans with Disabilities
Act: The Move To Integration, 64 Temple Law Review 393,
at 394 (1991)
In 1973, Americans with disabilities tied their hopes
for equal access to government programs to the passage of a little-noticed
provision in the Rehabilitation Act that barred discrimination on
the basis of disability by recipients of federal funds. It took
a nationwide sit-in at U.S. Department of Health, Education and
Welfare (HEW) buildings by people with disabilities in 1977, including
a month-long occupation in San Francisco, to persuade the Federal
Government to issue regulations implementing Section 504 of the
Rehabilitation Act. Since then, every executive agency has implemented
its mandate to bar discrimination against people with disabilities
by issuing regulations that describe what constitutes discrimination
based on disability and that set mandates for grantees. However,
there have been wide discrepancies in what the agencies have done
to enforce their regulations and to ensure compliance with the law.
The National Council on Disability (NCD) has issued
this report to provide a snapshot view of how five federal agencies
have implemented America's promise to rid society of discrimination
against people with disabilities. It examines the initial hopes
of disability rights advocates who worked to secure the implementation
of Section 504, and how these federal agencies defined and developed
their nondiscrimination mandate.
This report focuses specifically on the work that
the Departments of Labor, Education, State, and Health and Human
Services have done to ensure that recipients of their funding follow
Section 504. For the Departments of Education, Health and Human
Services, and Labor, the report analyzes the commitments that these
agencies made in their recent report to the President on their activities
in response to the Supreme Court's decision in Olmstead, in the
context of their Section 504 enforcement histories. In addition,
it reviews the role that the Department of Justice (DOJ) has played
through its Section 504 coordination responsibilities, and the impact
that this coordination work has had on the agencies' planning and
management activities.
In preparation for this report, NCD requested Section
504-specific data from the subject agencies about complaints and
compliance reviews. Among the data requested were the numbers of
complaints filed and compliance reviews initiated, the outcomes
of these enforcement-related activities, details of settlements,
and other information about agency enforcement activities, including
staffing and budget figures. When this information was not provided
by the agencies, publicly available sources such as budget submissions,
annual reports to Congress, and agency Web sites were consulted.
Additional information was culled from each subject agency's response
to the Government Performance and Results Act.
The subject agencies were then given the opportunity
to review and respond to preliminary drafts of this document for
technical accuracy and engage in an ongoing dialogue with NCD about
the findings and recommendations. Their responses were incorporated.
The report concludes by comparing each agency's performance
in the areas of complaint investigation and resolution, conduct
of compliance reviews, agency information on enforcement and compliance
issues, and agency resources for enforcement and compliance.
Finally, it recommends ways that agencies might better
meet the original goals and expectations of the legislation and
those whom the legislation was passed to protect.
CHAPTER
I
THE ORIGINS OF SECTION 504: THE INITIAL PROMISE OF DISABILITY RIGHTS
One of the nation's first laws barring discrimination
based on disability was enacted without fanfare and with little
notice. No hearings were held, no debate took place on the floor
of either house of Congress, and the name of the provision's author
has long been forgotten.
The Rehabilitation Act of 1973 was a spending bill
that authorized $1.55 billion in aid to people with disabilities.
Section 504 of the Act simply made it illegal for recipients of
federal funds to discriminate on the basis of disability. It was
modeled on the language of Title VI of the Civil Rights Act of 1964,
which barred recipients of federal funds from discriminating on
the basis of race, color, or national origin. Section 504 states:
No otherwise qualified individual with a disability
in the United States...shall, solely by reason of...disability,
be excluded from the participation in, be denied the benefits of,
or be subjected to discrimination under any program or activity
receiving federal financial assistance or under any program or activity
conducted by any Executive agency or by the United States Postal
Service. 29 U.S.C. 794.
To appreciate the significance of Section 504, it
is useful to consider the genesis of Title VI. More than a century
after the adoption of the Fourteenth Amendment, racial and ethnic
minorities remained largely excluded, segregated, and stigmatized.
Congress therefore adopted a radically different approach to civil
rights in 1964. It enacted laws that tied civil rights enforcement
to the expenditure of federal funds. From 1964 onward, it has been
a federal civil rights violation to use federal funds in ways that
exclude, deny benefits to, or discriminate against anyone on the
basis of their race, color, or national origin.
The second major change in civil rights enforcement
initiated by Title VI was that, unlike constitutional violations,
the 1964 Civil Rights Act prohibited unintentional acts of discrimination
as well as intentional acts. Thus, a hospital conglomerate that
adopted a racially neutral physician staff privilege policy that
resulted in racially segregated hospitals might be in violation
of the 1964 Act. Similarly, employment agencies that used racially
neutral screening standards for job applicants that resulted in
disproportionately lower job referrals to racial minorities than
to white applicants could be subject to enforcement actions.
In other words, recipients of federal funds may not
use practices and policies that have a disproportionate, adverse
impact on the classes of people protected by the federal civil rights
laws. If they do use such practices and policies, courts have required
recipients to show that they were pursuing a valid business objective
and that there are no alternative methods of fulfilling the objective
that have a less discriminatory impact.
Congress used this approach to civil rights enforcement
to protect people with disabilities in 1973 when it amended the
Rehabilitation Act to include Section 504. That section adopted
the language of the 1964 Civil Rights Act and prohibited the use
of federal funds to exclude, deny benefits to, or discriminate against
any otherwise qualified handicapped individual in the United States.
The U.S. Supreme Court later confirmed that Section 504, like the
1964 Civil Rights Act, prohibited unintentional as well as intentional
discrimination.
To implement Section 504, Congress authorized HEW
to issue regulations. Yet four years after its passage, Section
504 remained little more than an intriguing piece of legislation.
Concerned about potential costs, the Federal Government had failed
to issue regulations implementing the law.
On April 3, 1977, demonstrators with disabilities
held a candlelight vigil at the home of HEW Secretary Joseph Califano
to demand that he issue the draft regulations without gutting them.
Forty-eight hours later, demonstrators took over Califano's office
in the nation's capital and held protests at eight HEW regional
offices. The HEW secretary reacted by cutting off telephone access
and refusing to allow food distribution to demonstrators, effectively
forcing them to abandon their efforts after 28 hours.
Califano had no such success in San Francisco, where
advocates had also occupied the HEW office. After enduring six days
without access to telephones, attendants, or food, demonstrators
won the support of Representative Phillip Burton, who ordered guards
to allow food to reach demonstrators and to install three pay phones
for use by protestors. A week later, San Francisco Mayor George
Moscone defied federal officials by delivering 20 air mattresses
and shower hose sprays to the occupied offices. The Black Panthers
prepared food donated by local supermarkets, and community support
continued to grow.
After 12 days had passed with demonstrators showing
no inclination to leave, Burton and Representative George Miller
held a congressional hearing in the building. There, protesters
learned that Califano was weighing changes to the original unpublished
draft regulations that would result in "separate but equal" accommodations
for people with disabilities. The news served only to strengthen
the resolve of demonstrators.
On April 28, 1977, after disability rights advocates
had occupied the San Francisco office of HEW for nearly a month,
Califano signed the Section 504 regulations without weakening the
provisions. In addition to issuing regulations for recipients of
HEW funds, Califano also issued model regulations for all other
executive agencies to use to draft regulations that would apply
to their own programs. Today, every executive agency has its own
set of 504 regulations and must ensure that its grantees comply
with Section 504.
A. Self-Evaluations
The framers of the Section 504 regulations required
that each recipient of federal financial assistance conduct a self-evaluation,
with the assistance of individuals with disabilities, to identify
and correct practices and policies inconsistent with the goals of
Section 504. The notion of requiring self-evaluations grew from
testimony offered at 20 public hearings throughout the country that
HEW conducted before issuing its regulations. One of the persistent
themes of those who testified was that public and private providers
made assumptions about the role of disability; the medical nature
of all disability-related activities, benefits, and services; and
what people with disabilities needed and wanted and what was good
for them.
In addition to the aim of identifying and correcting
discrimination, self-evaluations were also adopted to change the
attitudes that underlay these assumptions. HEW adopted the recommendation
of witnesses who asked that providers be required to review all
of their policies and practices through the eyes of people with
disabilities. Their hope was that such an assisted self-evaluation
might give the public and private providers an understanding that
if buses had lifts, passengers with mobility impairments could travel
to work, to school, to nightclubs. Service providers had difficulty
envisioning how people with disabilities could live independently,
ride buses, and contribute to society. In fact, the term "wheelchair-
bound" continues to be used today, even by those who no longer believe
the quality of a wheelchair user's life is so diminished that it
can be aptly described by her seat.
B. Scope of Program Access
One of the central themes of the Federal Government's
Section 504 regulations is that recipients of federal funds must
ensure that their programs, as a whole, both meet the needs of their
beneficiaries with disabilities and do not discriminate against
them. The regulations require that program benefits and services
be delivered in the most integrated setting appropriate to the needs
of qualified individuals with disabilities. As time has shown, understanding
what "program as a whole" means, in 504 and ADA terms, has been
difficult for federal fund recipients. Several years ago, a related
version of this concept became the focus of a U.S. Supreme Court
decision.
In the late 1970s, HEW's Office for Civil Rights (OCR)
demanded that every college and university sign an Assurance of
Compliance with the federal civil rights laws. Grove City College
refused, saying that it did not receive any federal funds. In Grove
City College v. Bell, the Supreme Court ruled that because the
college accepted federally funded student scholarships, it had to
comply with civil rights laws. However, the Court limited that obligation
by holding that only the business office, which was the part of
the college that actually received the scholarship funds, had to
meet the civil rights obligations at issue. None of the other parts
of the college had to ensure that their courses, dormitories, health
services, or any of their programs were provided without discrimination
on the basis of race, color, national origin, religion, age, disability,
or gender.
Congress rejected the Supreme Court's interpretation
by enacting the Civil Rights Restoration Act of 1987. The Act imposed
federal civil rights responsibilities on every part of an agency
if any of its parts received federal funding. For Grove City College,
that meant that the college's acceptance of federally funded student
scholarships triggered civil rights obligations in every program,
practice, and policy it conducted or adopted.
The program-wide requirement of Section 504 provides
substantial flexibility to schools and other federal fund recipients.
If a college has three antiquated but similar dormitories, the college
is not required to make all three buildings accessible. As long
as its dormitory program meets the needs of all of its students
with mobility impairments and simultaneously provides its other
programs in the most integrated setting, the college may make only
one or two of its dorms structurally accessible, rather than all
three.
Viewing the situation from a broader perspective,
colleges will find many practices, policies, and buildings that
inhibit their ability to deliver their education program in the
most integrated setting that is appropriate. What the Section 504
regulations permit colleges to do is to identify and correct the
barriers that are likely to bring the program as a whole into compliance
with the law, without correcting every barrier.
It is important to note, however, that the "program-wide"
requirement applies both to architectural access and to programmatic
access. A recipient of federal funds may not, for example, justify
one inaccessible program by increasing the accessibility of another
program. More concretely, a federally funded employer may not refuse
to hire otherwise qualified people with visual impairments simply
because he provides marketing materials to potential clients in
Braille.
C. Why Section 504 Still Matters
Why should interested parties care about Section 504
enforcement now that the Americans with Disabilities Act (ADA) exists?
There are several reasons why the Federal Government should continue
to enforce Section 504, in spite of the apparently broader coverage
of the ADA.
First, and most important, Section 504 is based on
the premise that tax dollars will not be used to establish, promote,
or reinforce discrimination against people with disabilities. Entities
that violate Section 504 risk termination of their federal monies
by the agency that issued the funds. In contrast, the ADA has no
funding termination remedy. Moreover, DOJ is the only agency that
has independent litigating authority to enforce Title II of the
ADA, including alternative means of dispute resolution. It does
not have the authority to limit the timing or the amount of federal
financial assistance, or to condition such funds on compliance with
Section 504. Only the federal grant agencies have this authority.
Conditioning receipt of federal funds is important
for another reason: It requires grant program staff to develop ongoing
relationships with grantees. Agency staff are best positioned to
learn how their agency's funds are used, especially because of the
recent trend by state and local governments to adopt annual and
multiyear plans that explain how they intend to use the federal
funds they expect to receive.
Because of this knowledge, the funding agencies have
the authority and the ability to influence their recipients' choices
of how to spend their federal dollars. Recipient cities, for example,
have used their federal funds to create separate recreation activities
or swimming classes, for example, for children with disabilities;
to deny participation in employment programs to applicants who take
medications for psychiatric disabilities; and to place public benefit
programs in inaccessible buildings. Each of these decisions is likely
to be or to lead to a violation of both Section 504 and the ADA.
However, only the funding agency can withhold the amount of funding
that is equivalent to the amount that would support the illegal
activity. It can do much more, of course, but often the threat of
temporarily withholding even a portion of the funds is enough to
persuade the city to rethink its plans.
Second, agency staff have ongoing communications with
recipients. Rarely do recipients contact an OCR for information
or technical assistance. They direct their questions to the program
funding staff, with whom they have relatively frequent conversations.
To maximize enforcement, civil rights policies, practices, and goals
must be incorporated into the programs that receive federal funds.
That is much more likely to happen if both the funding and recipient
staff understand the civil rights laws and how to identify when
federal funds are being used to discriminate. If the funding agencies
do not enforce Section 504, there is little or no opportunity for
this type of education to occur.
Third, DOJ will never have sufficient resources to
litigate each of these types of 504/ADA violations, and for those
it does pursue, it must pursue them through time- and resource-consuming
litigation. As a result, DOJ is selective about cases it pursues,
often prosecuting only the most egregious cases or those that are
likely to have a significant impact in a particular area. Less precedent-setting
but equally meritorious enforcement of Section 504 violations is
done only by federal funding agencies.
Fourth, Section 504 covers a number of entities that
are not reached by the ADA. For example, the ADA covers only housing
that is funded or operated by state and local governments. In contrast,
Section 504 covers housing that is built or operated by other types
of entities that receive federal funds, such as housing run by nonprofits.
Finally, government enforcement of Section 504 is
particularly important in light of recent U.S. Supreme Court decisions
that limit the scope of private civil rights enforcement. In Alexander
v. Sandoval, the Supreme Court held that only the Federal Government,
not private individuals, could use Title VI of the 1964 Civil Rights
Act to challenge discrimination on the basis of disparate impact.
However, it would be illogical to read the constraint articulated
in Sandoval to apply to Section 504. Section 504 clearly
does not prohibit only intentional discrimination, since much of
the conduct that Congress sought to alter in passing the Rehabilitation
Act would be difficult if not impossible to reach were the Act construed
to proscribe only conduct fueled by a discriminatory intent. Despite
superficial associations of Section 504 and ADA Title II with some
aspects of Title VI, Section 504 and Title II of ADA differ in important
respects that make the reasoning and analysis of the majority in
Sandoval inapplicable. The ability to challenge disparate
impact discrimination is critical to addressing bias against people
with disabilities, particularly when intentional discrimination
is difficult to prove.
In Board of Trustees of the University of Alabama
v. Garrett, the Supreme Court found that the ADA does not permit
individuals to recover money damages when a state violates Title
I of the Act. However, the Federal Government may still recover
such damages against states. As the Supreme Court continues to limit
the ability of individuals to use the nation's civil rights laws,
the Federal Government's enforcement of Section 504 is more important
today than ever before.
D. Conditioning Federal Funds
Though all federal agencies have developed procedures
by which federal funds may be terminated for failure to comply with
Section 504, few have actually pursued termination as a remedy.
One reason may be that Congress attached an onerous process that
federal agencies must follow to terminate funds.
Although the law creates a burdensome process for
fund termination, it remains perhaps the single most effective way
to remedy discrimination. If it were used to address the most egregious
cases of discrimination, it would create a powerful deterrent that
would likely improve voluntary compliance with Section 504 by other
federal grantees. By including it in the statute, lawmakers envisioned
that less powerful remedies would not always prove sufficient to
root out discrimination on the basis of disability. But the use
of this remedy requires leadership and political will. For now,
funding termination remains a powerful tool that has yet to be tapped
by the agencies that are studied in this report. Just as clearly,
federal agencies need to develop a range of effective sanctions
that can also be used when necessary.
E. Meeting the Promise
Of course, whether Section 504 achieves its purpose
of eliminating disability discrimination by recipients of federal
funds depends in large part on how well federal agencies enforce
the law. The next chapters of this report examine the Section 504
enforcement records of five federal agencies, and the final chapter
recommends ways that each agency can move closer to fulfilling the
promise of this groundbreaking statute.
CHAPTER
II
THE AGENCIES' ADMINISTRATION OF THEIR SECTION 504 PROGRAMS
A. Introduction
The proponents of Section 504 embraced the federal
financial assistance strategy of Title VI of the 1964 Civil Rights
Act. They knew that disability discrimination was so ingrained in
the country's consciousness and so thoroughly cloaked in the mantle
of beneficent charity that only a dramatic approach to enforcement
was likely to work. The 1964 Civil Rights Act provided the model:
to condition all federal grant dollars on compliance with the nondiscrimination
mandate. Section 504 simply substituted the words "solely on the
basis of handicap" to describe the type of discrimination barred
in place of the words "race, religion, color and national origin"
contained in Title VI.
The reasons that the Civil Rights Act supporters chose
to condition federal grant funds were equally valid for eradicating
disability discrimination. The reasons were as follows:
1. Codify the illegality of funding "separate but
equal" programs and invalidate the federal statutes that permitted
the funding of such programs;
2. Reassure reluctant federal agencies that they
did have the authority to prohibit discrimination in their assistance
programs;
3. Eliminate repeated debates about prohibiting
discrimination in every bill that extended federal assistance;
4. Establish an "effective alternative to litigation"
and to its "arduous route";
5. Prevent discriminatory uses of federal assistance
from "defeating the program's congressionally imposed objective";
and
6. Halt the rampant discrimination in the states'
implementation of federal programs.
The federal agencies reviewed for this report varied
widely in their efforts to address the goals of Section 504 during
the 1990s. The Departments of Health and Human Services and Education
were the most effective in enforcing their grants' nondiscrimination
provisions. For these agencies, administrative enforcement did effect
change, often without the necessity of litigation. In contrast,
litigation remained the primary enforcement tool for the Department
of Justice, while for the Departments of Labor and State, the Section
504 program was never adequately supported, funded, or staffed to
achieve its original goals.
2. Internal Agency Support for a Section 504 Enforcement
Program
While there are obvious benefits to be gained by conditioning
grants with civil rights requirements, this approach presents a
basic conundrum: How can any agency that funds programs and invests
enormous amounts of time, personnel, and administrative support
to ensure the success of the programs simultaneously police the
program's compliance with its civil rights obligations? In other
words, how can an agency simultaneously promote and police the programs
it funds?
For some of the agencies, the answer was to establish
a civil rights program, require recipients to sign assurances that
they would comply with their civil rights obligations, and expect
the funding and enforcement programs to operate as distinct entities.
Both the Departments of Labor and State have used this approach,
at least with regard to their Section 504 programs. The Departments
of Health and Human Services and Education did not. What follows
is an analysis of each agency's Section 504 enforcement program.
B. The Department of Health and Human
Services
As the largest grant-making agency in the Federal
Government, the U.S. Department of Health and Human Services (HHS)
has had extraordinary power to enforce the nondiscrimination provisions
of Section 504. When its programs were part of the Department of
Health, Education and Welfare (HEW), HHS played the critical role
of issuing the first Section 504 regulations, as well as model regulations
for all other federal agencies. HEW was also lead agency for the
enforcement of Section 504. In 1980, HEW's programs were divided
between the new Departments of Health and Human Services and Education.
As a result, both agencies began with Section 504 programs and implementing
regulations as well as several HEW staff who had been part of the
original Section 504 enforcement efforts. An analysis of the Federal
Government's civil rights enforcement efforts during the 1980s is
not within the scope of this report, but their "dramatic decline"
has been well documented.
From 1990 to 2000, HHS took several steps to revive
its civil rights program and, in doing so, enhanced its enforcement
program in ways that other agencies did not. As a result, HHS was
better prepared than it would otherwise have been to respond to
the Supreme Court's landmark disability decision, Olmstead v.
L.C., in 1999. These practices included interagency Memoranda
of Understanding (MOUs) describing how HHS's Office for Civil Rights
(OCR) and HHS regulatory programs would coordinate their work; OCR's
outreach to disability advocacy organizations; and HHS's incorporation
of civil rights objectives in its department-wide planning pursuant
to the Government Performance and Results Act of 1993 (GPRA).
The goal of GPRA was to institute planning and evaluation
standards in federal agency programs to make them more accountable
to the public. For the first time, GPRA required agencies to develop
five- year strategies and to publish annual reports describing how
they were meeting department-wide goals and to what extent they
were meeting their goals. As the General Accounting Office (GAO)
explained:
The Results Act seeks to shift the focus of federal
management and decision-making from staffing, activity levels,
and tasks completed toward results. Under the Results Act, federal
agencies must develop (1) strategic plans by September 30, 1997;
(2) annual performance plans for fiscal year 1999 and beyond;
and (3) annual performance reports beginning on March 31, 2000.
Unlike the other agencies reviewed for this report,
HHS incorporated its civil rights program and, in particular, its
disability rights program into its planning processes in significant
and meaningful ways. For example, HHS identified input from advocacy
groups as an important source of information for planning and enforcement
purposes. Other agencies may have relied on and valued input from
the public through advocacy groups, but none of their Strategic
Plans reflected that information.
Even before its GPRA review and planning, and perhaps
in at least partial response to highly critical reports by the Citizens'
Commission on Civil Rights about HHS's civil rights program, HHS
issued a Civil Rights Plan in 1995 that established three goals
for OCR:
(1) Leading in the creation and evolution
of a Department-wide civil rights program, (2) increasing nondiscriminatory
access to and participation in HHS programs, and (3) redeveloping
OCR's infrastructure and investing in its staff.
By developing this plan, HHS recognized that its coordination
of civil rights activities and its enforcement program were in need
of significant upgrading in almost every area. HHS made major improvements
in its civil rights program overall, including its enforcement of
Section 504. One of the most promising strategies that the agency
adopted was to develop MOUs between OCR and HHS grant programs.
As of the date of this report, OCR reports having developed such
MOUs with the Administration for Children and Families, the Administration
on Aging, the Centers for Disease Control and Prevention, the Agency
for Toxic Substances Disease Registry, and the Food and Drug Administration.
Each MOU is tailored to meet the distinct mission of the agency.
Each participating grant program acknowledges its civil rights and
Section 504 responsibilities. Each MOU includes the following paragraph:
In carrying out this responsibility, [the program]
will ensure that there are no barriers that tend to exclude people
from the benefits of its programs because of race, color, national
origin, disability, age and sex under limited circumstances. The
purposes of the activities undertaken by [the program] are to
help prevent discrimination before it occurs and to assist recipients'
compliance with the civil rights authorities prior to initiation
of formal reviews or complaint investigations by OCR.
To ensure their continuing vitality, the MOUs spell
out the reciprocal obligations of OCR and the subagency.
Since there is never sufficient funding for any civil
rights office to review every grantee's compliance with the civil
rights laws, the benefit of obtaining the grantor's cooperation
in understanding and enforcing these responsibilities is immeasurable.
These MOUs were signed in 2000 and 2001, and it is too early to
assess their impact. But the goals, the development of "contracts"
between OCR and the grantor agencies, and HHS's response to GPRA
pressures to operate all of its various programs in a coordinated
way have the potential for promoting important, institution-wide
change. OCR's development of similar MOUs with all HHS offices would
reinforce this approach.
A second promising change in the HHS civil rights
operation has been the Department's automation of its Medicare Pre-Grant
Award system. Although OCR has conducted pre-grant reviews of facilities
that participate in Medicare since the inception of the Medicare
program in the 1960s, the use of the Automated Pre-Grant process
began in October 1998. Many of the questions concern Section 504
issues:
communication with persons who have sensory
or speech impairments;
provision of auxiliary aids to persons with sensory, manual, or
speech impairments;
grievance procedures for disability discrimination allegations;
Section 504 coordination; and
Section 504 self-evaluation.
HHS gathers information about non Medicare recipients'
compliance with civil rights laws through complaint investigations,
compliance reviews, and technical assistance and outreach activities,
as do the Departments of Education, Labor, and Justice. These data
collection methods, while important, produce less consistent and
less comprehensive civil rights data than does the automated Medicare
system. Adding a similar automated system to the approaches that
HHS already uses to enforce the civil rights obligations of its
non Medicare recipients would enhance the agency's ability to implement
its enforcement goals with all of its grantees, as well as serving
as a model for other federal civil rights agencies.
Third, federal agencies have long been criticized
for not communicating with disability advocacy organizations and
for being inaccessible when such organizations attempt to bring
critical civil rights issues to their attention. The criticism has
been leveled against both offices for civil rights and grant program
offices. HHS has specifically included contact with advocacy groups
in its GPRA plans. For example, in its fiscal year 1999 Annual Performance
Plan, OCR mentions working with advocacy groups to identify data
needs, provide technical assistance, and identify recipients of
HHS funds for review in all HHS programs.
OCR indicated that it planned to increase its outreach
to and partnership activities with advocacy organizations to enhance
their access to OCR's planning processes. OCR increased its numbers
to 20 partnerships and 26 outreach activities in the context of
the Temporary Assistance for Needy Families (TANF) program in 1999
2000. In 2000 2001, OCR increased its outreach efforts and partnerships
to 35 partnerships and 41 outreach activities. These rising numbers
provide hope that OCR will leverage its resources by enhancing the
ability of consumers and advocates to achieve better compliance
with Section 504.
The most dramatic and encouraging actions that HHS
took during the 1990s were in response to the U.S. Supreme Court's
decision in Olmstead v. L.C. The Court ruled that unnecessary
institutionalization of qualified individuals with disabilities
was a form of discrimination prohibited by the ADA. The Court held
that states were required to provide community-based services for
persons with disabilities who would otherwise be entitled to institutional
services when (a) treatment professionals reasonably determined
that such placement was appropriate; (b) the affected persons did
not oppose such treatment; and (c) the community placement could
be reasonably accommodated, taking into account the resources available
to the state and the needs of others who were receiving state-supported
services. Although the opinion did not preclude the existence of
waiting lists for community programs, it made clear that waiting
lists had to move at a reasonable pace so that those who could leave
the institution had a real chance of doing so.
Since 76,000 people were in state mental hospitals
nationwide at the time of the decision and many thousands more in
other types of institutions, the Court's decision constituted a
groundbreaking directive to the states to administer their services,
programs, and activities "in the most integrated setting appropriate
to the needs of qualified individuals with disabilities." This ADA
standard replicates the Section 504 regulation and, although the
Court did not mention Section 504, its decision affected compliance
with both laws.
Instead of OCR's routinely issuing an analysis of
the case, the decision prompted an agency-wide response. First,
Secretary Donna Shalala sent a letter to the governors of all the
states, alerting them to the decision and describing the ruling
as reflecting "a shared belief that no person should have to live
in a nursing home or other institution if he or she can live in
his or her community." This letter indicated that HHS would be actively
providing technical assistance and support to comply with the desegregation
mandate. It reminded the states that HHS had made available an additional
$2 million for "deinstitutionalization" and "community-based services"
actions eight months earlier. Next, the directors of both OCR and
the Health Care Finance Administration (HCFA; now the Center for
Medicaid and Medicare Services) sent a joint letter to all state
Medicare and Medicaid agencies concerning Olmstead. The letter
included specific suggestions as to how the states could analyze
their programs to determine whether they were in compliance with
the decision and with the ADA and Section 504 regulations.
HHS followed these initial letters with four more
jointly issued technical assistance letters; established an Olmstead
addition to the HHS Web site; began working closely with the Departments
of Justice and Education; and attempted to work with the Department
of Housing and Urban Development to develop a government-wide strategy
to help the states meet their disability rights obligations.
HHS's response was unusually thorough but appropriate.
HCFA's programs had subsidized the institutionalization of tens
of thousands of individuals with disabilities. For the first time
since the enactment of Section 504, one federal agency acted to
focus and coordinate the work of its enforcement and granting arms
toward altering decades of Medicaid policies and practices that
had created "a significant barrier to the community integration
of individuals with disabilities." HHS could have waited to receive
civil rights complaints from individuals who believed that their
states were not complying with the Court's decision, as federal
agencies have done since the first Section 504 regulations were
published. Instead, HHS responded in a much more forceful, proactive,
and effective way.
When OCR did begin to receive administrative complaints
that state agencies were not complying with Olmstead, OCR
attempted conciliation in every case, in part by getting state and
local agency respondents to convene appropriate stakeholders to
do Olmstead planning while holding in abeyance the usual
investigation and enforcement efforts available to OCR. This new
approach resulted in the respondents' focus on root problems in
many of the cases.
HHS's Olmstead efforts were reinforced on June
19, 2001, by the White House's issuance of Executive Order 13217,
Community-Based Alternatives for Individuals with Disabilities.
The President appointed the secretary of HHS to take the lead in
working with the Departments of Justice, Education, Labor, and Housing
and Urban Development and the Social Security Administration "to
ensure that the Olmstead decision is implemented in a timely
manner."
Specifically, the Order required the agencies to work
with the states; to evaluate the agencies' own federal programs,
practices, regulations, and statutes; and to issue a report to the
President. The Order also required HHS and DOJ to "fully enforce
Title II of the ADA," which outlaws disability discrimination in
state and local programs. Since Title II incorporates and expands
Section 504, this was the first Executive Order that focused on
helping states comply with the two laws and that required each of
the named agencies to review its own programs for the purpose of
"removing barriers that impede opportunities for community placement."
In response, each of the agencies conducted the required
evaluation and contributed to the final Report to the President.
HHS's evaluation constituted a serious assessment of its own programs,
identified ways in which its programs contributed to unnecessary
institutionalization, and reported how the Department responded
to its own findings. Two of these responses are particularly relevant
to this report. One was HHS's creation of the Office on Disability
and Community Integration (ODCI). Its purpose is to "serve as the
focal point within the Department for disability issues, including
the coordination of disability science, policy, programs and special
initiatives within the Department and with other agencies." To assist
the ODCI, HHS also created a Disability Advisory Committee that
includes individuals with disabilities, family members, advocacy
organizations, providers, and state and local government officials.
Since these HHS components are brand-new, it is too
early to determine what impact they will have on the agency's Section
504 and ADA Title II enforcement programs. However, these are promising
developments, particularly since many people with disabilities,
especially those who are low and very low income, depend on HHS
programs. Enforcing Section 504's requirements can only improve
as HHS becomes more effective and proactive in monitoring its own
programs to ensure that their focus is integration.
Finally, HHS also recommended that the President formalize
the Interagency Council on Community Living (ICCL). HHS convened
the Council to accomplish the Executive Order tasks and recommended
that it be expanded to include other relevant agencies, such as
the Equal Employment Opportunity Commission (EEOC) and the Internal
Revenue Service (IRS). If made permanent, the ICCL might accomplish
the work originally envisioned for the moribund Interagency Disability
Coordinating Council (IDCC), created by Section 507 of the Rehabilitation
Act in 1973.
C. The Department of Education
1. Readjusting Enforcement Strategies
Until 1993, the Department of Education's civil rights
program focused on complaints. OCR reported to Congress that "nearly
90 percent of OCR resources were spent in a complaint mode." At
that time, and throughout the 1990s, more than 50 percent of the
complaints received by OCR concerned discrimination based on disability.
That meant that OCR staff were spending the majority of their time
resolving disability complaints filed on the basis of Section 504
and/or the ADA.
Though focusing the majority of OCR's resources on
disability was potentially good news for the disability community,
it raised serious questions among OCR leadership and staff "about
whether the enforcement program was balanced to address all issues
for which OCR had responsibility." They were concerned that if OCR
remained a complaint-driven agency, it would not be able to fulfill
its obligations to enforce the race, national origin, age, and sex
discrimination statutes.
To facilitate a responsible civil rights enforcement
program that did not "overemphasize" disability complaints and therefore
was not complaint driven, OCR made several organizational changes.
It radically altered its program and decentralized the location
of its staff; improved and increased its outreach and training program;
emphasized its reliance on parents, students, and community groups
to identify civil rights issues and monitor compliance agreements;
and reinforced its technical assistance communications and publications.
These changes led the U.S. Commission on Civil Rights to find that
"the organizational structure of external civil rights enforcement
at the U.S. Department of Education is exemplary."
2. Organizational Restructuring
Between 1994 and 1996, OCR reduced its Washington
staff by 44 percent and increased the number of staff in the field.
Eighty-eight percent of OCR's staff were placed in four enforcement
divisions-- eastern, southern, midwestern, and western--and the
divisions included 12 enforcement offices. OCR changed the role
of headquarters staff so that their work became providing headquarters
support to field staff, making it easier for field staff to enforce
the civil rights laws, provide technical assistance to recipients,
and work with community advocates and families. In addition, headquarters
staff were responsible for coordinating OCR's civil rights work
within the Department and among other federal agencies.
From its inception in 1980, OCR's structure has been
different from that of other agencies in two ways. The head of the
agency is not a director but an assistant secretary. Many of the
original staff had worked at HEW. They had learned how difficult
it was to integrate civil rights issues into the funding programs.
Therefore, the Education Department began its existence with a commitment
to treat civil rights with the same level of importance as all the
other parts of the agency that were headed by assistant secretaries.
The benefit of this approach has been that OCR has continuously
worked closely with the programs that focus on disability issues,
such as the ones sponsored by the Office of Special Education and
Rehabilitative Services (OSERS) and the Office of Elementary and
Secondary Education.
One benefit that students with disabilities have derived
from this structure has been the issuance of "Dear Colleague" letters
to state and local education agencies from the assistant secretaries
of both OCR and OSERS. One such letter, sent in 1997, addressed
the importance of including students with disabilities in national
reading and math assessments. The letter explained both the civil
rights and programmatic issues and recommended practices. A similar
letter, issued on July 25, 2000, addressed school harassment based
on disability. It defined the issue; provided guidance and recommended
actions; explained how harassment might violate Section 504, the
Individuals with Disabilities Education Act (IDEA), and the ADA;
and offered technical assistance.
Given the close relationships between the funding
programs and OCR and OCR's shrinking staff size, an additional approach
for OCR to explore is the development of MOUs with its funding partners,
like the ones HHS developed. For example, the MOU might require
the Post-Secondary Office to (a) determine how many of its grantees
had conducted self-evaluations and fulfilled the goals of the resulting
Transition Plans, as required by Section 504, and (b) develop materials
and technical assistance guidance for its grantees, with guidance
from OCR.
The second difference between OCR's organization and
that of other agencies also resulted from HEW experience. There,
as in many agencies, the civil rights office depended on the Office
of General Counsel for all its legal needs, from the most mundane
questions on legal standing to approval for issuing a letter of
findings determining whether the recipient was in compliance.
When the Department of Education was created in 1980,
it had its own legal staff. Most reviewers agree that one reason
OCR was able to process its complaints more efficiently, refer more
cases to the Department of Justice, and respond more quickly and
effectively to enforcement issues than were other agencies was because
OCR was able to identify and resolve legal issues without requesting
assistance from a separate office. While OCR had coordinated closely
with its General Counsel's Office, it was not dependent on it for
regulation and policy development. This organization reduced delays
in producing publications and, more important, reflected input by
staff whose focus and experience were based on actual civil rights
enforcement experience.
OCR still maximizes the benefit of having its own
legal staff by having its lawyers work with investigators and other
program staff to conduct compliance reviews and assess the compliance
status of the funding recipients. In OCR's 12 enforcement offices,
"case resolution teams" consist of attorneys, investigators, and
support staff. "The teams have authority, with minimal levels of
review, to reach final determinations in all but a small number
of OCR cases."
3. Issue Networks
A novel result of OCR's shift of resources has been
the creation of "issue networks." When OCR changed from a complaint-driven
agency, it chose to expand and strengthen its community and internal
communication networks so it could focus its resources on the civil
rights issues that were of most concern to the public and the agency's
civil rights staff. The OCR-OSERS letter on harassment of students
with disabilities, for example, resulted from conference calls between
OCR and OSERS staff, and calls and letters from students, parents,
and disability advocates. Before drafting the letter, OCR and OSERS
held a focus group to gain more information about the problem from
those directly affected.
It would be useful for OCR to publicize any other
actions it has taken to respond to this problem and to publicize
any investigations, administrative enforcement actions, or consultations
with DOJ that it has undertaken regarding prosecuting harassment
complaints. The purpose of the reorganization was to help OCR become
more effective in its ability to respond quickly and effectively
to civil rights problems when they arose. OCR's ability to publicize
and explain the civil rights aspects of student harassment--a current
topic of substantial public interest--would be one measure of the
reorganization's success.
The "networks" that OCR has established include the
Disability Network, the Testing Network, and the Minorities in Special
Education Network. The remaining networks focus on the education
of gifted and talented students, racial harassment/discipline, education
of limited English proficient students, and elementary and secondary
school racial desegregation. Participants in the networks include
staff from each of the field and headquarters offices that work
on Section 504 and ADA enforcement. When appropriate--as with the
testing issue that was the subject of the OCR-OSERS letter mentioned
above--the Disability and Testing Networks conduct joint calls.
These calls help staff learn from each other and create a coordinated
approach to overarching problems.
During fiscal year (FY) 2000, the calls included the
following subjects: the application of the Family Educational Rights
and Privacy Act to disability complaint investigations; recent court
decisions on sovereign immunity; Section 508 technology advances;
homeless children with disabilities; and postsecondary academic
adjustments and services. The last two calls were conducted by OCR
but consisted of presentations by officials of the Association of
Higher Education and Disability, representatives of Educational
Services to Homeless Children with Disabilities in Baltimore, and
the Women's Collective in Washington, D.C.
The Disability Network maintains an intranet site
that can be accessed by all OCR staff. The site includes links to
significant court decisions, laws, and regulations; relevant law
review articles; and technical assistance presentations. This site
is reinforced with a quarterly newsletter, The Disability Networker,
that discusses developments in OCR cases, as well as court decisions
and other relevant and useful news.
Few agencies, much less their offices for civil rights,
have designed systems such as ED's networks to incorporate the expertise
and vision of disability advocates outside the agency and make them
available to line staff. The potential benefit of such interchange
is obvious. The question that it raises, however, is how well OCR
has succeeded in using this "outsider" focus and internal coordination
to increase staff competence and the agency's ability to avert and
resolve violations of Section 504.
It is important to note, however, that OCR has taken
unusual steps to implement its goals. For example, when its Seattle
office addressed harassment in the schools, it worked with a state
Office of Education to develop a Web site that would include all
available laws, regulations, and policies on harassment, as well
as policies and links to self-evaluation resource materials. For
students with disabilities, who have always been an easy target
of harassment, this kind of federal-state partnership could be dramatic
and empowering.
4. Monitoring Civil Rights, by OCR and by the
Community
As difficult and time-consuming as it sometimes is
for civil rights agencies to investigate a complaint or conduct
a compliance review, issue a letter of findings, and structure a
settlement or a voluntary compliance agreement, effective civil
rights enforcement requires an additional step. Achieving full and
lasting relief requires monitoring the settlement or agreement designed
to correct noncompliance. OCR addressed this issue, too, in its
restructuring. It added the task of monitoring resolution agreements
to its Strategic Plan and Annual Performance Plans and listed monitoring
as a separate activity to which it would devote its resources. As
an example of its success, OCR reported that it monitored 2,083
complaint resolution agreements and 807 compliance review resolution
agreements in 1999.
What is novel about OCR's monitoring its agreements
is that the agency has actively sought the assistance of parents.
Beginning in 1993, OCR determined that it would strengthen its partnership
with students and parents, partly to expand the reach of its technical
assistance efforts and partly to "help others to learn to solve
their problems of securing equal access to quality education." Encouraging
beneficiaries to help ensure that their schools comply with civil
rights agreements is a very effective way for OCR to maximize its
resources, and it is consistent with OCR's turning to its beneficiary
community and to the Department's recipients for help in identifying
discrimination and technical assistance needs.
In 1999, OCR refined its monitoring activities further.
In addition to tracking a recipient's compliance with complaint
resolution agreements, OCR started to focus "not only on whether
the recipient has taken the specific steps required in its agreement,
but also on whether those steps have achieved goals established
for the compliance activity and improved students' access to high
quality education."
This is possibly the best argument that OCR could
make for moving away from being a complaint- driven office. Rather
than investigating similar complaints from a variety of sources
and solving each of them individually and repeatedly, OCR has adopted
a much more sophisticated approach to civil rights enforcement.
Reviewing whether an agreement actually accomplishes a Section 504
goal on a case-by- case basis is unique among civil rights agencies.
Having the flexibility to work with a recipient to modify agreements
and generate better outcomes for students is a goal that every civil
rights agency should adopt; it places the emphasis on results over
process.
5. The Department of Education's Response to
Olmstead
Like HHS, the Department of Education (ED) responded
to Olmstead when it was decided in 1999. According to its Executive
Order 13217 Self-Evaluation, OSERS took the lead for ED's response
to the Olmstead decision. OSERS created a joint project with
the Department of Labor and HHS "to promote grass-roots advocacy
in support of home/community-based waivers under Medicaid." As the
Department describes the project, its focus is on helping states
develop five-year plans "for providing supports and services for
people with significant disabilities" that include "strong consumer-
directed home and community-based services for persons with disabilities."
ED's Olmstead response lists nine additional
efforts, eight of which are led by program components of the agency.
The ninth effort, led by OCR, is not focused on enforcement but
rather on "targeted technical assistance and training initiatives"
and the preparation of "a resource document in the area of transition
from secondary school to post-school opportunities." Nowhere does
the OCR report refer to any compliance reviews or enforcement actions,
either past or future, that would reinforce ED's collaborative activities
with states, parents, and advocates or that would ensure that its
recipients are complying with relevant statutory and regulatory
mandates. In fact, the only mention of civil rights enforcement
in support of Olmstead activities comes in the description
of protection and advocacy activities, which are funded by the Department's
Rehabilitative Services Administration.
The Office for Civil Rights is responsible for ensuring
that the schools, universities, state vocational rehabilitation
agencies, nonprofit organizations, assistive technology providers,
businesses, and others that the Department describes as being involved
in its Olmstead efforts conduct their activities so that
they are accessible to beneficiaries with disabilities. Recipients
whose policies deny services to those on psychiatric medication
or whose services are located in inaccessible sites, for example,
impede the ability of students and workers with disabilities to
obtain education and employment services and benefits, in violation
of Section 504 regulations and the ADA. It is both puzzling and
worrisome that ED's report to the President mentions nothing about
how it intends to enforce the regulations and statutes it cites
as supporting its Olmstead efforts. It is particularly troubling
that OCR's discussion of its Olmstead actions, as encouraging
as they sound, does not include any mention of enforcement activities,
other than stating that OCR "vigorously enforces...the ADA and Section
504." The Department of Education knows how to enforce Section 504,
and it should demonstrate that capacity in its Olmstead activities.
D. The Department of Labor
1. The Civil Rights Center: A Minimalist Approach
When Congress expanded the Rehabilitation Act in 1973
to include disability rights, it covered recipients of federal financial
assistance through Section 504 and contractors doing business with
the Federal Government through Section 503. The Department of Labor
(DOL) was designated as the lead agency to promulgate regulations
under Section 503 of the Rehabilitation Act, and it assigned Section
503 responsibilities to its Office of Federal Contract Compliance
(OFCCP), which had been responsible for working with contractors
to enforce its other civil rights laws. To enforce the civil rights
laws that applied to the recipients of the DOL's grant programs,
it created the Office for Civil Rights, which was renamed the Directorate
of Civil Rights in the early 1980s and renamed again in the mid-
1990s as the Civil Rights Center (CRC).
From its inception, CRC has had limited funding and
a small staff. It has had to stretch its resources to administer
the agency's Title VII employment discrimination program for DOL
employees. Unlike the Offices for Civil Rights in HHS and ED, CRC
has never had regional staff, with the exception of one staff person
in each regional office, who is responsible for internal Title VII
implementation. All Section 504 investigations, technical assistance,
compliance reviews, prefunding award reviews, and regulatory and
policy development have been conducted in Washington, D.C. CRC has
no separate policy office. It rarely works with OFCCP; the two offices
consult each other only when they receive Section 503 and 504 complaints
that are filed against the same entity or when compliance review
efforts are directed against entities that both contract with DOL
and receive federal financial assistance from one or more of its
programs. Joint training is limited to "almost every year, [when
OFCCP] conducts a workshop(s) at CRC's annual national equal opportunity
training conference."
During the 1980s, CRC spent the majority of its resources
on complaints and compliance reviews. For example, the office spent
only $10,000 on technical assistance activities in 1988. While the
budget for the office increased during the 1980s, the additional
funds supported internal, DOL employee Title VII complaint processing.
The budget for enforcement of all of the civil rights laws affecting
recipients dropped to a low of $1.9 million in 1988. Similarly,
the size of the enforcement staff dropped from 66 in 1981 to 32
in 1988. By 1994, the number of full-time enforcement staff had
risen from 32 to only 34, and CRC's budget had increased to $2.5
million. By 2002, DOL's budget request for all of CRC's activities,
including its internal Title VII program, was $5.8 million. Since
the Title VII program absorbed at least half of CRC's resources,
the budget to enforce recipients' civil rights obligations would
be no higher than $2.9 million, or slightly more than the 1994 budget.
In contrast, OFCCP's budget request was for $76.2 million.
CRC conducted no prefunding award grant fund reviews
in the early 1990s, and no post-award desk audits in 1992 and 1993,
despite an increase in the number of cities and counties that newly
became DOL program recipients when Congress enacted the Job Training
Partnership Act (JTPA), providing federal funds for job training
and placement services. The 1990 passage of the ADA also increased
CRC's workload.
DOL distributes most of its federal financial assistance
through continuing state programs. This fact, combined with CRC's
small size and few resources, has resulted in its reliance on Methods
of Administration (MOA) documents. Required by both the JTPA in
1984 and the Workforce Investment Act (WIA) in 1998, the MOA
is a document that describes the actions an individual
State will take to ensure that its WIA Title I-financially assisted
programs, activities, and recipients are complying, and will continue
to comply, with the nondiscrimination and equal opportunity requirements
of WIA and its implementing regulations.
One potential benefit of the MOA approach was that
it required states to employ equal opportunity staff and train them
to be able to identify discrimination, conduct investigations, and
obtain corrective action and sanctions. When CRC focused its attention
in 1994 on the MOA requirement in the JTPA regulations, nine years
after DOL published the regulatory requirement, the Civil Rights
Center required every state to submit an MOA so that CRC could review
them for compliance with CRC's detailed guidance.
The CRC issued a letter finding at least one state
recipient of JTPA funds in noncompliance with Title VI for not having
submitted an MOA. This was apparently the only time that CRC found
a state out of compliance with its MOA from 1984 until 2000. On
August 25, 2000, after Congress replaced the JTPA with the Work
Incentives Improvement Act, DOL published its "State Guidance for
Developing Methods of Administration Required by Regulations Implementing
Section 188 of the Workforce investment Act of 1998." According
to Patrick Pizzella, Assistant Secretary for Administration and
Management, "The CRC initially rejected a substantial number of
MOAs submitted by States pursuant to the WIA nondiscrimination regulations....
In addition, we understand that CRC required at least some such
States to sign Conciliation Agreements to accompany their amended
MOA's...." According to CRC staff, assessment of the MOA is a paper
review, limited to determining whether the MOA includes all the
required documentation. Severely limited resources and insufficient
staff prevent CRC from conducting on-site assessments. Instead,
as the Guidance makes clear, it is the governor's responsibility
to review the state's MOA every two years and to notify CRC when
the state modifies its MOA. Once CRC approves the MOA, it is the
responsibility of the state to enforce it. As the Guidance explains,
the MOA is intended to be a document that State
and local level staff and management, through the EO [Equal Opportunity]
Officer, can consult when determining appropriate steps to take
when confronted with an EO issue .It has been CRC's intent that
the MOA be a living document, a guide describing how the State
will ensure that its WIA Title I-financially assisted programs
will operate in a nondiscriminatory manner.
Although the Guidance and the regulations indicate
that a state's failure to follow the dictates of its own MOA might
subject the state to a finding of noncompliance and the conditioning
or loss of federal funds, in truth, CRC does not have the resources
or staff to conduct on-site reviews. It would be appropriate for
GAO or a similar investigative body to determine whether CRC's long-distance
oversight and the states' willingness and ability to comply with
the WIA regulations and guidance are sufficient to generate compliance
with Section 504, the additional disability provisions of the WIA,
and all the other civil rights laws covered by the MOA.
2. Creating Consistent Enforcement Standards
In its 1996 report on federal enforcement of Title
VI (which bars discrimination based on race, color, and national
origin), the U.S. Civil Rights Commission found that DOL's JTPA
regulations were more extensive, more comprehensive, and more specific
about recipients' obligations than were its race discrimination
regulations applicable to other DOL grantees. The Commission recommended
that DOL either update its Title VI regulations to make them consistent
with the JTPA regulations or make the JTPA regulations applicable
to all of DOL's grant programs. The same could be said for Section
504. In fact, the WIA replaced the JTPA program in 1998, and DOL
published a final implementing rule on November 12, 1999.
The sections of the WIA regulations that address disability
discrimination are far more extensive, comprehensive, and specific
than are the Section 504 regulations, and they are an improvement
over the JTPA regulations. Not only do they incorporate the amendments
to the Rehabilitation Act and the requirements of the ADA, they
also incorporate best practices that have been developed by disability
organizations and individuals over the course of the past 20 years.
If all the DOL recipients are included in the WIA
and are required to comply with the WIA regulations, the differences
between the stronger and more comprehensive disability nondiscrimination
regulations of the WIA and those of Section 504 would be theoretical.
However, as that is not the case, it is incumbent on the Department
to republish its Section 504 regulations to include the more expansive
provisions of the WIA regulations. Otherwise, it will perpetuate
an unfair and confusing two-class system under which beneficiaries
of WIA programs have greater protections than do beneficiaries of
other DOL programs.
The one prominent Section 504 provision that the WIA
regulations do not include is the self-evaluation requirement. On
the basis of DOL guidance, recipients of WIA funds might be led
to believe that they are not required to conduct self-evaluations,
and they would be reinforced in their belief by the statements of
Assistant Secretary for Administration and Management Patrick Pizzella.
In correspondence with NCD, the assistant secretary interprets the
Department's Section 504 regulations as requiring only those entities
that were recipients in 1980, when the regulations were published,
to conduct self-evaluations. Although DOL documents make it clear
that this is not Department policy, it would behoove the Disability
Rights Section of the Department of Justice to resolve the conflict
within DOL and to recommend that it clarify to its recipients that
Section 504 continues to require self- evaluations and Transition
Plans.
In spite of a lack of resources, the CRC Section 504
enforcement program does have a computerized case-tracking system.
CRC monitors all its conciliation agreements and keeps the cases
open until the recipient meets all the terms of the agreements.
However, NCD received conflicting information as to whether CRC
seeks relief that would make the complainant "whole" by, for example,
seeking out-of- pocket expenses and monetary relief for pain, suffering,
or humiliation. Such relief is consistent with DOJ guidance and
is sought by other civil rights offices. CRC Director Annabelle
Lockhart reported that her office did not seek make whole relief.
Pizzella indicated the opposite in his comments on the draft version
of this report.
With regard to compliance reviews, CRC did not seek
the involvement of community organizations or disability advocacy
agencies. This practice differs from the approaches adopted by HHS
and ED. In another departure from enforcement practices used by
HHS and ED, CRC ceased all compliance review work with the exception
of WIA MOA reviews, beginning in 2000. Apart from those paper reviews,
CRC focused its efforts on training and technical assistance, also
aimed primarily at WIA participants. Since it is apparent from the
Department's Strategic Plans and Olmstead Report that many of the
Department's offices have been addressing training and technical
assistance needs related to the WIA, CRC could, instead, emphasize
its civil rights enforcement mission in its work.
CRC, unlike the Department of Education's OCR, does
not have its own lawyers and depends on DOL's Office of the Solicitor
to enforce findings of civil rights violations. The Solicitor receives
few referrals from CRC, which is consistent with CRC's emphasis
on training and technical assistance. Without an active Section
504 enforcement program, DOL's grantees have less incentive to comply
voluntarily with the law. If an individual beneficiary or an advocacy
group identifies discriminatory practices and files an administrative
complaint with CRC, the Department will learn that its recipient
may be violating Section 504. That is too haphazard a way to ensure
that federal tax dollars are being spent lawfully.
When asked what would improve CRC's ability to respond
to Section 504 enforcement matters, Lockhart answered that both
recipients and DOL program staff needed more training about Section
504 obligations. Lockhart did not identify any Section 504 enforcement
operations that the agency believed were particularly successful
or that could serve as a model for other agencies. She identified
a lack of resources, in terms of both dollars and personnel, as
being the major impediment to more effective Section 504 enforcement.
3. DOL's response to Olmstead and Executive
Order 13217
Although the Department of Labor's CRC has backed
away from Section 504 enforcement programs, it and several other
DOL offices are investing extensive resources into technical assistance
and interagency coordination and collaboration programs on behalf
of people with disabilities. This is nowhere more clear than in
its Olmstead Report to the President. CRC is mentioned twice
in the report, both times as providing technical assistance and
training support in furtherance of the Department's WIA initiatives.
Both as administrator of DOL's Equal Employment Office and as the
Department's Section 504 enforcement office, the Civil Rights Center
has been and will be in the position of collecting information that
would support the development of enforcement strategies. Nothing
in the Olmstead Report suggests that CRC is fulfilling this
role.
For example, the Department's Olmstead Report
says that CRC will conduct "disability-focused reviews and evaluations"
of Section 504 and the other nondiscrimination obligations of the
WIA. However, instead of using the reviews for the purpose of bringing
WIA participants into compliance, DOL plans to use them "to identify
further areas in which federal training and technical assistance
activities are needed to eliminate barriers and to prevent disability
discrimination in the WIA programs." In other words, DOL will not
emphasize the enforcement of Section 504, or of any of the civil
rights laws, in the WIA programs.
CRC will also participate in "listening sessions."
These listening sessions will bring CRC in contact with people with
disabilities, employers, parents and family members, providers of
employment supports and services, and "other relevant stakeholders...about
changes needed to ensure meaningful and effective service delivery
to people with significant disabilities." These are precisely the
beneficiaries of the DOL programs who know how the programs are
not working and, with the help of CRC, could identify which of the
malfunctions are the result of discrimination that CRC was created
to address. That, however, is not the purpose for including CRC
in the meetings, according to the Olmstead Report. Nor is
there any indication that CRC plans to investigate, let alone prosecute,
any evidence of Section 504 noncompliance that arises in these listening
sessions.
On the other hand, DOL's technical assistance, collaboration,
and coordination plans, as described in its Olmstead Report,
are both resource intensive and coordinated throughout the Department.
Although enforcement has proven to be a necessary component of federal
efforts to bring people with disabilities into the mainstream, technical
assistance and training are also important, and DOL is building
on a history of technical assistance activity in the disability
field. It has collaborated with the President's Committee on the
Employment of People with Disabilities (PCEPD) since the committee's
establishment in 1945, and its Job Accommodation Network (JAN) has
long provided very good technical assistance and outreach materials
about a wide range of reasonable accommodation options at worksites
to employers, job seekers with disabilities, and employees. The
JAN has a toll-free number and a user-friendly Web site that describes
resources for technical assistance, funding, education, and services
related to the employment of people with disabilities.
Its Office of Disability Employment Policy (ODEP)
has accomplished most of DOL's more recent work on behalf of people
with disabilities. Created by Congress in 1998, ODEP replaced the
PCEPD. ODEP's mission is
[t]o increase opportunities for adults and young
people with disabilities by expanding access to training, education,
employment supports, assistive technology, integrated employment,
entrepreneurial development, and small business opportunities.
It also builds partnerships with employers and state and local
agencies to increase awareness of the benefits of hiring people
with disabilities, and to facilitate the use of effective and
lawful strategies for such hiring.
In contrast to CRC's $5.8 million budget for FY 2002,
ODEP's budget is $38.1 million. Judging by its funding decisions,
DOL has apparently decided that ODEP, not CRC or even the Office
of Federal Contract Compliance, has the primary responsibility for
furthering the Department's interests in the disability field. This
is clear not only from its funding allocations, but from DOL's decision
to assign the lead to ODEP, and not CRC, on any revisions of the
Section 504 regulations.
That said, DOL has developed thoughtful and potentially
groundbreaking approaches for helping people with mental and physical
disabilities be successful in finding, getting, and keeping jobs.
DOL's Olmstead Report reflects a clear understanding of the
barriers to employment that exist and a commitment to spending the
resources to address them. For example, the report discusses "customized
employment," tailored to each individual's needs; an emphasis on
integrated employment; and expanding the network of collaborations
that are the foundation of DOL's One-Stop Employment Centers. The
collaborations would include nonemployment entities that support
the participation of many people with disabilities in the workforce,
such as state Medicaid agencies and community mental health centers,
ED's Office of Special Education Programs, and relevant offices
in Housing and Urban Development and the Department of Transportation.
The self-evaluation that DOL conducted as part of
its Olmstead Report did, like HHS's self- evaluation, help
the agency identify ways to make its programs more accessible to
people with disabilities. For example, the report says that DOL's
Pension and Welfare Benefits Administration will expand its "education
campaigns and...outreach...to address specific information and questions
to assist Americans with disabilities" in such areas as health benefits,
pensions, and other retirement benefits.
The DOL self-evaluation identifies plans to (a) help
youth transition into the workforce, (b) work more closely with
advocacy and community organizations, and (c) increase the employment
of individuals with psychiatric disabilities, the supply of personal
care assistants, and the use of technology in job finding and job
retention. DOL follows the discussions of the barriers in each of
these areas with specific proposals and work plans that suggest
both a willingness to change the agency and excitement about increasing
the employment of individuals with disabilities.
Unlike that of HHS, DOL's self-evaluation addresses
its future plans with respect to Olmstead but does not effectively
assess the agency's own programs, their institutional biases, and
the barriers they create for individuals with disabilities. But,
if DOL Secretary Elaine Chao is serious about directing "each DOL
agency to aggressively implement the policies and programs contained
in this response to President Bush's Executive Order," she must
also make effective demands on states and other recipients to adhere
to the disability-related goals of the WIA and create a serious
Section 504 enforcement program to accomplish the goals of the WIA.
Whether or not that will happen is not clear. Whether or not the
effort to accomplish the goals of the statute also reveals the need
to generate a serious Section 504 enforcement program is even less
clear.
E. The Department of State
In 1996, NCD raised serious concerns about the Department
of State's treatment of disability issues, both in substantive policies
and in the administration of its programs. As NCD reported,
The study found that the United States does not
have a comprehensive foreign policy on disability. Those responsible
for creating and implementing U.S. overseas policies and programs
generally lack awareness of disability issues, cannot articulate
our national policies with respect to people with disabilities,
do not incorporate the interests of people with disabilities into
U.S. foreign policy objectives, and do not see the importance
of U.S. disability advances and achievements for people with disabilities
in other countries.
Although it may not seem apparent to many, the Department
of State (State) funds domestic as well as foreign programs, including
research, training, and cultural exchanges. It therefore has an
obligation to enforce Section 504. Nonetheless, State has yet to
create a Section 504 enforcement program. The obligation to create
such a program has been placed in the agency's Office of Civil Rights
(OCR). However, OCR describes its responsibilities as enforcing
nondiscrimination in employment within the agency, and OCR's Director
also serves as Director of Equal Employment Opportunity for the
Department. The OCR Web page does not mention Section 504, the ADA,
or any statutes other than those related to employment.
When NCD asked the Department of State about its Section
504 enforcement program, State officials responded by saying that
the agency relied on EEOC's Management Directive 110 for complaint
investigation guidance. The only Section 504-related document that
State provided to NCD, in addition to its 504 regulations, was the
Policies and Procedures Directive on Barrier-Free Accessibility
and Barrier-Free Accessibility ACTION PLAN and POLICY IMPLEMENTATION
PLAN. When it submitted its answers to NCD in March 2001, State
indicated that it was in the process of creating a Section 504 Web
site. As of November 2002, the Web site did not exist.
Though the State Department has compliance review
procedures, it has never conducted a Section 504 compliance review
of any recipient of the agency's federal financial assistance. Instead,
the agency uses the term "compliance review" to describe its analysis
of a State Department building's structural accessibility.
State receives no funding earmarked for Section 504
activities. In response to NCD's questions, the Department said
that it had never communicated with its recipients and consumers
about Section 504 enforcement but that its officials "are now considering
that question." Acknowledging the small size of the agency's civil
rights staff, the officer indicated that to obtain a meaningful
program, State was likely
to identify other federal agencies with larger
programs and delegate our compliance and enforcement activities
to those agencies. If none exist, the Department must conduct
its own compliance reviews and enforcement activities....The Department
has an MOU with the Department of Education regarding federal
financial assistance to education institutions.
Since the Department does provide federal financial
assistance through various grant programs, and since it has published
Section 504 regulations, it is required to fulfill the mandates
of its own regulations. The fact that it does not do so has a direct
bearing on the lives of tens of thousands of people. Some of these
are employees, students, and parents who are involved with the Department
of State's American- Sponsored Elementary and Secondary Schools
Program. During the 2001 2002 academic year, the Department's Office
of Overseas Schools assisted 182 schools, where 5,334 of the employees
were Americans employed by the Department and 28,854 of the children
were children of State Department officials. While the Department
might deliver information about civil rights generally and disability
rights in particular, its Web page does not include any information
about how an employee would ask for a reasonable accommodation or
whether American-sponsored schools are accessible to students who
use wheelchairs.
State's MOU with the Department of Education might
be the reason that the Department of State has no Section 504 program.
In 1966, State and HEW signed an MOU through which State delegated
its Title VI (race, national origin, and color discrimination) responsibilities
to HEW.
In 1980, the Departments of Education and Health and
Human Services replaced HEW, which ceased to exist. Ten years later,
in 1990, the Department of State redelegated its Title VI responsibilities
and, for the first time, its Section 504 federally assisted responsibilities
to the Department of Education. ED agreed to be responsible for
all "pre-approval and post-approval reviews, complaint investigations,
and actions to resolve noncompliance of the education institutions"
that received grants from State. The MOU describes the roles that
each agency agrees to play in the case of administrative and judicial
enforcement, as well as the documents and support that the agencies
agree to provide.
Judging only by the Department of State's responses
to NCD about its Section 504 program, the Department has little
understanding of and may have had little actual contact with the
Department of Education in connection with the Section 504 MOU.
If the only recipients of State's grant funds are education institutions,
there is good reason that it never developed a federally assisted
Section 504 program. That was not, however, the Department's answer
to NCD's questions. However the MOU works, though, State is ultimately
responsible for ensuring compliance with Section 504.
The Department does not indicate that it provides
information on the disability rights laws to its employees or their
family members, or any materials that explain the elements of a
Section 504 complaint or a description of how to file and to pursue
a complaint, nor has it indicated that it converts any of its printed
materials into Braille or tape. State has not allocated funds, staff,
or other resources to accomplish the varied tasks that are the responsibility
of federal grant agencies.
F. The Department of Justice
The Department of Justice (DOJ) is best known as an
enforcement agency. It also administers programs that award grants
to courts, police departments, jails and prisons, and other entities
in state and local justice systems. The Bureau of Justice Assistance
(BJA) in the Office of Justice Programs (OJP) contributes to the
funding of most, if not all, state and local agencies and institutions
involved with law enforcement and the administration of justice.
DOJ administers separate funds for state and local juvenile justice
programs through the Office of Juvenile Justice and Delinquency
Prevention (OJJDP). Both BJA and OJDDP administer a combination
of block grant funds, discretionary funds, and formula grants.
In 1995 the Assistant Attorney General for Civil Rights
created the Disability Rights Section (DRS) to enforce and to provide
technical assistance throughout the Federal Government on all Section
504 and ADA matters. Responsibility for enforcing the Section 504
obligations of DOJ funding recipients was also transferred to DRS.
DRS has enforced Section 504 only on a case-by-case
approach, either on the basis of an individual complaint or as a
"pattern and practice" case. It has not conditioned or threatened
to terminate the funds of any of the BJA or OJP grant recipients
because of Section 504 violations, although it has done so for the
violation of non civil rights requirements. For example, BJA has
withheld funds for the construction of jails and prisons from states
that did not establish a registry of "sexually violent predators."
Many of the cases filed by DRS have involved
state and local corrections agencies, requiring specific jails to
become wheelchair accessible, police departments to hire sign language
interpreters, and courthouses to provide materials to jurors on
tape and in Braille. As important as these victories have been,
each has resulted in the correction of a single Section 504 violation
by a single department of the entity receiving DOJ funds, rather
than broad-based systemic reform by ensuring compliance throughout
the entity's programs. Neither DRS nor OCR has ever attempted to
withhold federal funds from grantees that violated Section 504.
If DOJ does not have the political authority to threaten to withhold
all of a state's criminal justice funds until the state embarks
on a plan to provide sign language interpreters in all its jails
and prisons, DOJ will continue to have difficulty persuading the
civil rights offices of other federal agencies to enforce their
Section 504 regulations as forcefully and effectively as possible.
In light of DOJ's role as the nation's lead law enforcement
agency, it should provide a model of effective civil rights enforcement.
Where DRS can demonstrate that the proven Section 504 violations
affect more than a single courthouse, prison, jail, or probation
department, DOJ could greatly expand the reach of its victories
by requiring states to address systemic violations of Section 504.
One of the reasons Title VI and Section 504 were adopted was to
replace "litigation and its arduous route" with administrative enforcement.
DOJ has yet to accomplish this goal in its enforcement of Section
504.
In addition to enforcing Section 504 among its own
grantees, DOJ is also responsible, under Executive Order 12250,
for coordinating disability rights enforcement throughout the Federal
Government. DOJ has had the responsibility of enforcing Executive
Order 12250 to ensure that federal agencies follow a consistent
approach in their enforcement of civil rights laws. Until 1995,
DOJ's Office of Coordination and Review provided this coordination
on all such laws, including Section 504. Its primary focus during
the 1990s was on the development and review of regulations, since
all civil rights regulations require DOJ approval before publication.
It also worked on a prototype Section 504 regulation that incorporated
the changes made in the law through the Civil Rights Restoration
Act and various amendments to the Rehabilitation Act; worked on
Architectural Barriers Act matters; collected agency civil rights
workload and performance data; reviewed civil rights implementation
plans; and provided technical assistance to the agencies, including
the DOJ litigation and appeal sections.
While the Office of Coordination and Review provided
valuable assistance to the other federal agencies in each of these
areas, it did not coordinate the enforcement of Section 504 throughout
the Federal Government, as required under Section 507 of the Rehabilitation
Act. Congress amended Section 507 in 1993 by renaming the Interagency
Coordinating Council the Interagency Disability Coordination Council
(IDCC). Congress also added the Departments of Transportation and
Housing and Urban Development to the Council and expanded its and
DOJ's responsibilities "to include monitoring and coordinating all
efforts of the federal agencies concerning the rights of individuals
with disabilities (e.g., the ADA as well as Title V of the Rehabilitation
Act)." Apart from notifying the member agencies of these changes
and asking them to designate representatives, the Department did
not take any other action for the next nine years. In fact, DOJ
has yet to convene its first meeting of the IDCC.
It is clear from its Executive Order 12250 Reports
to the President that DOJ's DRS has performed its oversight responsibilities
outside the IDCC. Without the IDCC meetings, DOJ could not discuss
and coordinate government-wide disability rights enforcement
issues simultaneously with assistant secretaries of the IDCC's member
agencies. That was the goal of Section 507, and it was not met.
Further, by not convening the meetings, DOJ has stymied the role
that Section 507 envisioned for NCD: to provide advice, recommendations,
and suggestions for agency studies. The fact that DRS actively meets
with agencies about their technical assistance activities but does
not convene meetings on enforcement matters, through the IDCC or
otherwise, reflects the degree to which the Federal Government chooses
to emphasize collaboration and education over enforcement.
DOJ does a better job coordinating government-wide
technical assistance on the ADA. DOJ's DRS chairs an ADA Technical
Assistance Coordinating Committee of 17 agencies. The Committee
discusses issues of common interest and exchanges information on
the agencies' technical assistance activities and initiatives. In
addition, DRS has worked with federal agencies on an individual
basis to ensure that each agency's policies and regulations conformed
to those of DOJ. For example, DRS issued policy instruction in 1995
to the Department of Agriculture (USDA) regarding USDA's guide to
feeding children with special health care needs in schools.
With more funding than any federal civil rights office
has ever received from Congress, and with a dedicated and very experienced
staff, DRS produced the ADA regulations and guidance manuals on
Title II and Title III in a remarkably short time. It developed
and distributed close to two million ADA documents to the public,
fielded thousands of phone calls through its ADA hotline, worked
with the IRS to notify six million businesses about the ADA in an
IRS mailing, organized public hearings, distributed millions of
dollars in grant funds for education projects, and conceived and
implemented other outstanding outreach and technical assistance
activities, shortly after the passage of the ADA.
Executive Order 12250 requires each federal agency
to submit to DOJ Annual Civil Rights Implementation Reports that
describe their efforts to enforce the civil rights obligations of
their grantees. The DRS and the Office of Coordination and Review
have not received complete reports from the agencies that are the
subject of this report, nor are they able to provide a complete
set of agency reports they did receive. The Annual Civil Rights
Implementation Reports that are available are notable for their
dissimilarities. Some are testaments to the work that has been done
by the agency, and, in some instances, the only place where detailed
complaint and compliance data are reported. Other agency reports
can only be described as minimal and perfunctory, and some reports
contain data that are inconsistent with data found elsewhere, such
as budget and staffing figures.
There is little evidence that DOJ has spent time reviewing
the reports or the substantive work they reflect, even to the extent
of asking for clarification or additional information. The agency
reports provide a telling profile of the work that has or has not
been done by the agency during the previous year. Examining the
reports for progress made, for deficiencies, for best practices,
or for areas where DOJ could usefully provide coordination or technical
assistance and providing feedback on these issues to the agencies
would be a useful function for DOJ to perform. DOJ could also provide
a summary of some of the best work being done by the enforcing agencies,
provide updates on court decisions interpreting Section 504, and
help agencies that lag behind others in enforcement, compliance,
training, or technical assistance abilities.
In addition, DOJ could provide other helpful coordination
services. Its manual about enforcement activities under Title VI
of the 1964 Civil Rights Act has been a useful resource for many
agencies. It should develop additional materials specific to Section
504 compliance. DOJ could also develop core training about Section
504 compliance basic skills, such as investigator strategies, conduct
of compliance reviews, and so forth, to avoid having each agency
replicate the same kind of training. Agencies could then use their
limited resources to develop advanced training on enforcement and
compliance activities specific to their programs.
In response to the Olmstead Executive Order,
DOJ conducted an effective review of its own grant, litigation,
and administrative programs to determine whether they promoted or
impeded the goals of the ADA. DOJ also identified new litigation
and education plans to respond to deinstitutionalization and integration
barriers that it discovered from members of the public, other agencies,
and their own litigation.
For example, DOJ stated that "a lack of awareness
of the ADA's requirements contributes to the problem of unnecessary
institutionalization." As a result, DOJ proposed new technical assistance
actions that "address the types of community services that are critical
to sustaining persons with disabilities in community-based settings.
DOJ's self-evaluation also identified barriers that limit the technical
assistance and enforcement capacities of its Civil Rights of Institutionalized
Persons Act office, its Housing and Civil Enforcement office, and
its Corrections and Community Relations programs. While the Olmstead
Report also listed the actions that the Department proposed to take
to address these barriers, there were few specifics, no numbers,
and no timetables. Nor did the report include adequate discussion
about the Department's plans to employ its coordination authority
and persuade other federal agencies to expand their civil rights
programs beyond technical assistance activities.
If the only consequence of violating Section 504 is
receipt of technical assistance to help an entity obey the law,
there is little incentive in bothering with voluntary compliance,
or even learning what the law requires. Congress understood that
funding termination was a powerful tool to ensure compliance. Unfortunately,
that is a tactic that DOJ and the other agencies discussed in this
report have not successfully adopted.
CHAPTER
III
ADMINISTRATIVE ENFORCEMENT OF SECTION 504
Each of the five federal agencies examined in this
Report is charged with the responsibility of enforcing Section 504.
Each has adopted federal regulations describing the obligations
of recipients of federal financial assistance, prohibited practices,
and agency processes for enforcing the law.
The most common form of Section 504 enforcement is
the investigation of complaints filed with the agency by individuals
who claim to have been discriminated against by one or more recipients
of federal financial assistance. Enforcement of complaints requires
an agency to provide staff support for an intake and prospective
complainant counseling function, for information-gathering about
the recipient or recipients involved in the complaint, and for the
conduct of investigations, including substantial travel costs associated
with on-site investigations. Staff must also identify possible discrimination,
conduct data collection and analysis, and research judicial and
administrative decisions that outline the law's application in particular
situations. In addition, the investigative function requires an
ability to identify issues and gather information that is relevant
to resolving complaints.
When the investigation results in the identification
of civil rights violations, staff typically develop proposals that
address statutory or regulatory deficiencies and negotiate resolutions.
Where necessary, Section 504 enforcement can include the imposition
of sanctions or referrals to DOJ for litigation. Those referrals
typically require the preparation of detailed written findings of
a violation, provide an opportunity for a recipient or recipients
to respond, and, in the absence of an agreed-upon resolution of
the complaint, require a final agency determination that the law
has been violated.
Agencies that enforce Section 504 may also conduct
agency-initiated reviews of the performance of a recipient. In contrast
to complaint investigations, which are generated by external complaints,
compliance reviews are typically initiated by the agency. In some
instances, these reviews are characterized as "preventive" reviews
and are described by the agency as a form of technical assistance.
In other instances, the reviews are aimed at enforcement and may
be agency-generated, entail a broad look at a recipient's conduct
based on individual complaints, or be based on reports that describe
problems that do not fit the usual complaint parameters.
The key resources that a civil rights office needs
to enforce any civil rights law are enough staff and resources to
support sometimes complex and lengthy investigations. In addition,
there should be sufficient resources to support the more discretionary
functions of compliance reviews and education and outreach. If there
are insufficient funds for enforcement, priority is often given
to complaints, leaving little or no funds for compliance reviews,
which are a discretionary agency function. If enforcement funding
is inadequate, there may not be enough money available to train
and manage staff, conduct efficient investigations, or educate recipients
and the public about the law.
This chapter will review the performance of the agencies
that are the subject of this report in the following key areas:
complaint investigation and resolution, conduct of compliance reviews,
agency information on enforcement and compliance issues, and agency
resources for enforcement and compliance. NCD requested Section
504-specific data from all the agencies about complaints and compliance
reviews. Among the data requested were the numbers of complaints
filed and compliance reviews initiated, the outcomes of these enforcement-related
activities, details of settlements, and other information about
the agency's enforcement activities, including staffing and budget
numbers. When this information was not provided by the agencies,
publicly available sources, including budget submissions, annual
reports to Congress, and agency Web sites, were reviewed and relevant
information from those sources, if available, was incorporated into
this report. Only the Department of Education appeared to have a
centralized database capable of generating detailed information
on subjects such as the number or percentage of cases in which the
agency found violations and negotiated settlements, complaints were
withdrawn, or the agency took other action. The Department of Health
and Human Services (HHS) states that it is developing such a system.
A. Complaint Investigations
In FY 2001, HHS awarded over $44 billion to 230,000
recipients. In the past 10 years, HHS's Office of Civil Rights (OCR)
has conducted, on average, slightly more than 2,000 complaint investigations
annually regarding all civil rights obligations of grantees, including
Section 504. The overall agency workload is an important consideration
in evaluating agency efforts, as competing priorities may affect
an agency's ability to enforce Section 504.
Complaints filed with HHS dipped significantly during
the mid-1990s, with only 1,548 complaints filed in FY 1998, down
from 2,222 in FY 1994. The number of complaints filed has risen
steadily since FY 1999, with a projected 2,253 complaints anticipated
during FY 2003.
Complaints Filed with HHS Office of Civil Rights
Fiscal Year |
Number of Complaints Filed |
1994 |
2,222 |
1995 |
2,094 |
1996 |
1,827 |
1997 |
1,741 |
1998 |
1,548 |
1999 |
1,950 |
2000 |
2,185 |
2001 |
2,148 |
2002 |
2,200 (estimated) |
2003 |
2,253 (estimated) |
Source: FY 1997, 1998, 1999, 2000, 2001, 2002, 2003
Budget Submissions to Congress
HHS provided data relating to its handling of Section
504 complaints for all but two years since 1994. The number of Section
504 complaints filed dropped during fiscal years 1998 and 1999;
it has since slightly rebounded but has not returned to the high
of 1994. In every year reported, HHS closed more Section 504 complaints
than it opened.
HHS Section 504 Complaints
Fiscal Year |
Number of Complaints Filed |
Number of Complaints Resolved |
1994 |
689
|
796 |
1995 |
Not
Provided |
Not Provided |
1996 |
Not
Provided |
Not Provided |
1997 |
380
|
483 |
1998 |
295
|
412 |
1999 |
311
|
359 |
2000 |
409
|
362 |
2001 |
404
|
483 |
2002 |
363
|
416 |
2003 |
Not
Provided |
Not Provided |
Source: Information provided to NCD, 2002
The rate at which agencies close complaints is an
indicator of both efficiency and resources. Case closures ideally
will roughly equal or exceed the number of complaints filed to prevent
the development of a backlog of cases that remain open and to ensure
that complaints are promptly investigated. Similar to the pattern
seen in its complaint filings, the HHS numbers reflect a dip in
its FY 1998 complaint closure rate. The number of complaints closed
annually since FY 1998 has increased.
Complaints Resolved by HHS Office of Civil Rights
Fiscal Year |
Number of Complaints Resolved |
1994 |
2,231 |
1995 |
2,358 |
1996 |
1,996 |
1997 |
1,901 |
1998 |
1,644 |
1999 |
1,758 |
2000 |
1,749 |
2001 |
2,138 |
2002 |
2,320
(estimated) |
2003 |
2,291
(estimated) |
Source: FY 1997, 1998, 1999, 2000, 2001, 2002, 2003
Budget Submissions to Congress
HHS projects that its OCR will have a backlog of 983
cases at the end of FY 2003. That number is 30 percent of the total
number of complaints that OCR anticipates will be its annual workload
in FY 2003 (3,224 cases).
In FY 2001, the Department of Education (ED) provided
federal financial assistance to more than 25,000 recipients, including
approximately 15,000 local education agencies, 10,000 post-secondary
institutions, 57 state education agencies, and 82 state rehabilitation
agencies and their subrecipients. Federal financial assistance to
these recipients amounted to over $37 billion.
ED's OCR received almost 38,000 complaints under all
its authorities during the period 1994-2000, or an average of 5,244
complaints annually. As with HHS, the number of complaints filed
with ED dropped in the late 1990s, to 4,846 complaints filed in
FY 1998 in comparison with 5,229 in FY 1997 and 6,628 in FY 1999.
ED has filed and investigated many more complaints than HHS, despite
the fact that HHS disperses more funding and has more recipients.
Complaints Filed with Department of Education
Fiscal Year |
Number of Complaints Filed |
1994 |
5,302 |
1995 |
4,981 |
1996 |
4,828 |
1997 |
5,229 |
1998 |
4,846 |
1999 |
6,628 |
2000 |
4,897 |
2001 |
Not
Provided* |
2002 |
Not
Provided |
*The number of complaints filed with the Department
of Education in FY 2001 and 2002 has not been found in any published
documents.
Source: Department of Education OCR's 2000 budget justification
ED was the only agency examined in this report to
have detailed information readily available to the general public
about its work on disability complaints. It publishes annually a
breakdown of complaints by type, with disability complaints routinely
comprising over 50 percent of its complaint workload. ED's Section
504 complaint filings, unlike ED's overall complaint numbers, did
not drop in FY 1998, although overall its complaint filings during
the period 1996 1998 were down from 1995 levels.
Department of Education Section 504 Complaints
Fiscal Year |
Number of Complaints Filed |
Number of Complaints Resolved |
1994 |
Not
Provided |
Not
Provided |
1995 |
3,002
|
3,428 |
1996 |
2,533
|
2,996 |
1997 |
2,836
|
3,032 |
1998 |
2,949
|
2,901 |
1999 |
4,245
|
3,296 |
2000 |
2,693
|
4,208 |
2001 |
Not
Provided |
Not
Provided |
2002 |
Not
Provided |
Not
Provided |
Source: Office for Civil Rights Annual Report to Congress,
FY 1995 2000, available online at
www.ed.gov/offices/OCR/congress.html,
data sheet dated 12/12/2000 provided by Department of Education
to NCD
ED reports a high rate of complaint closures. In four
of the six years for which data were available, it reported closing
more Section 504 complaints in a fiscal year than were filed, thus
making inroads into its case backlog. In the chart above, ED closed
more Section 504 complaints than were filed in fiscal years 1995,
1996, 1997, and 2000. In addition, ED has reported for several years
that it routinely closes nearly 80 percent of its complaints within
180 days from the date on which they are filed an unusually efficient
record for a federal agency.
Number of Complaints Resolved by ED
Fiscal Year |
Number of Complaints Resolved |
1994 |
5,751 |
1995 |
5,559 |
1996 |
4,886 |
1997 |
4,900 |
1998 |
4,753 |
1999 |
5,369 |
2000 |
6,364 |
2001 |
Not
Provided |
2002 |
Not
Provided |
Source: FY 1995 2000 OCR Annual Reports to Congress
In FY 2001, the Department of Labor (DOL) reported
that it provided 1,036 grantees with a total of $40 billion of financial
assistance.
Unlike the Departments of Education and Health and
Human Services, DOL has two civil rights offices. DOL's Office of
Federal Contract Compliance Programs (OFCCP) is the better known
of the two offices. It enforces Section 503 of the 1973 Rehabilitation
Act, which bars federal contractors from discriminating on the basis
of disability. The Civil Rights Center (CRC) enforces Section 504
against recipients of DOL's grant funds. As noted in the previous
chapter, OFCCP has 11 times the staff and resources of CRC. It also
has more direct access to the Secretary. While a deputy assistant
secretary heads OFCCP, a director, who reports to a deputy assistant
secretary, heads CRC. From internal and external appearances, OFCCP
has greater credibility and more importance in DOL than does its
Section 504 office, CRC.
Over the past 10 years, CRC has handled, on average,
about 1,000 complaints annually against grant recipients alleging
discrimination on the basis of race, color, national origin, religion,
sex, and/or disability. The number of complaints filed has dropped
every year since 1997. DOL did not produce data for the years preceding
1997.
Number of Complaints Filed with DOL under All Civil
Rights Laws
Fiscal Year |
Number of Complaints Filed |
1994 |
Not
Provided |
1995 |
Not Provided |
1996 |
Not Provided |
1997 |
1,224 |
1998 |
1,232 |
1999 |
984 |
2000 |
818 |
2001 |
766 |
2002 |
Not Provided |
2003 |
Not Provided* |
*Information for FY 1994-1996 and 2002-2003 has not
been found in any published document.
Source: Information provided to NCD, 2001
The CRC devotes most of its staff time and resources
to fulfilling its role as DOL's equal employment opportunity office.
With its remaining resources, it enforces Section 504, the ADA,
Title VI, Title IX, and the other civil rights laws that apply to
recipients of the Department's grants. This chart reflects the numbers
of complaints that were filed with DOL under both Section 504 and
Title II.
Complaints Filed with DOL under Section 504 and Title
II
Fiscal Year |
Number of Section 504/ADA Complaints Filed |
1994 |
Not
Provided |
1995 |
Not
Provided |
1996 |
Not
Provided |
1997 |
40 |
1998 |
31 |
1999 |
36 |
2000 |
25 |
2001 |
33 |
2002 |
Not
Provided |
2003 |
Not
Provided |
Source: Annual Implementation Plan filed with the
United States DOJ pursuant to Executive Order 12550, FY 1997 2000
Information about the number of complaints and the
number of Section 504/Title II complaints resolved during the past
decade by DOL, and how they have been resolved, was not available
from public sources.
In FY 2000, the Department of State reported that
it had 313 recipients of federal financial assistance and provided
federal financial assistance amounting to over $139 million.
Until October 1, 1999, the U.S. Information Agency
(USIA) conducted enforcement of civil rights laws involving recipients
of funding from the Department of State. At that time, civil rights
enforcement responsibilities for recipients were assigned to the
Office of Equal Opportunity and Civil Rights, which reported to
the deputy secretary of state. These recipients did not include
educational institutions, whose compliance with the civil rights
laws had been delegated to the Department of Education, as discussed
in Chapter 2.
The Department of State has reported no federally
assisted civil rights enforcement activity over the 10 years covered
by this report. It effectively has no Section 504 enforcement program.
The agency reports that it has had no formal Section 504 complaints
filed against recipients during the period covered by this report.
The lack of complaints likely reflects the agency's lack of public
education and outreach about the rights of people with disabilities
under Section 504 rather than a lack of discrimination against people
with disabilities.
Complaints Filed with the Department of State
Fiscal Year |
Complaints Filed |
1994 |
0 |
1995 |
0 |
1996 |
0 |
1997 |
0 |
1998 |
0 |
1999 |
0 |
2000 |
0 |
2001 |
0 |
2002 |
0 |
Source: Annual Implementation Plans filed with the
United States DOJ pursuant to Executive Order 12550
B. Compliance Reviews
Agencies enforcing Section 504 have the authority
to conduct proactive reviews of recipients' compliance, or noncompliance,
with Section 504. This authority is discretionary in the sense that
it is not driven by complaints. Compliance reviews permit a comprehensive
examination of the activities of a particular recipient for compliance
with the law. A compliance review may be used to identify hitherto
undisclosed compliance issues, can provide an early alert about
emerging problems, and can be used as a vehicle for training or
technical assistance.
It should not be overlooked, however, that compliance
reviews may be, and sometimes are, used as an effective enforcement
tool, carrying with them the possibility of a wide variety of sanctions,
including suspension or termination of funding. Compliance reviews
are an effective way to conduct systemic enforcement of the law
without an individual complaint. Especially when victims of discrimination
do not, or cannot, speak for themselves, compliance reviews help
ensure that congressional intentions for civil rights laws are met.
The Department of Health and Human Services has initiated,
on average, 210 compliance reviews annually during each of the past
10 years.
HHS Compliance Reviews Initiated
Fiscal Year |
Total Compliance Reviews |
Section 504 Compliance Reviews |
1994 |
203 |
Not Provided |
1995 |
122 |
Not Provided |
1996 |
181 |
Not Provided |
1997 |
328 |
Not Provided |
1998 |
301 |
Not Provided |
1999 |
287 |
Not Provided |
2000 |
317 |
Not Provided |
2001 |
137 |
Not Provided |
2002 |
201
(projected) |
Not Provided* |
2003 |
208
(projected) |
Not Provided |
*The number of Section 504 compliance reviews conducted
by HHS by fiscal year has not been identified in any published documents.
Source: HHS Annual Budget Submissions to Congress, 1997, 1998, 1999,
2000, 2001, 2002, and 2003
The Department of Education has conducted, during
the same 10-year period, an average of 100 reviews annually under
all the civil rights laws that it enforces, including Section 504.
An annual average of only 11 of the compliance reviews have addressed
Section 504 issues. The number of Section 504 compliance reviews
is tiny in comparison with the number of entities that receive financial
assistance from ED. As described earlier in the report, ED has embarked
on other strategies that may have resulted in fewer compliance reviews
in recent years, including compliance monitoring and broadening
the scope of complaint investigations.
Department of Education Compliance Reviews Initiated
Fiscal Year |
Total Compliance Reviews |
Section 504 Compliance Reviews |
1994 |
144
|
Not Provided |
1995 |
96 |
5 |
1996 |
146 |
13 |
1997 |
152 |
11 |
1998 |
102 |
11 |
1999 |
76 |
15 |
2000 |
47 |
11 |
2001 |
Not Provided |
Not Provided |
2002 |
Not Provided |
Not Provided* |
2003 |
Not Provided |
Not Provided |
*The number of Section 504 compliance reviews initiated
by Education by fiscal year has not been identified in any published
documents. Source: Annual Implementation Report to DOJ pursuant
to Executive Order 12550, FY 1994 2000
Very few data are available about compliance activity
at the Department of Labor. The data that were reported indicate
minimal compliance activity, given DOL's administration of over
$40 billion annually.
DOL Compliance Reviews Initiated
Fiscal Year |
Total Compliance Reviews |
Section 504 Compliance Reviews |
1994 |
Not
Provided |
Not Provided |
1995 |
Not
Provided |
Not Provided |
1996 |
Not
Provided |
Not Provided |
1997 |
Not Provided |
2 |
1998 |
Not Provided |
84 |
1999 |
0 |
0 |
2000 |
0 |
0 |
2001 |
Not Provided |
Not Provided |
2002 |
Not Provided |
Not Provided |
2003 |
Not Provided |
Not Provided |
Source: Annual Implementation Plan Submitted to DOJ
pursuant to Executive Order 12550, FY 1998 2000
The Department of State reports that it incorporates
compliance reviews into inspections conducted by the Office of the
Inspector General and field visits of Office of Building Operations
staff. However, it is not clear that these "compliance reviews"
are consistent with either the nature or the scope of the typical
Section 504 compliance review conducted of recipients by other federal
agencies. They are reviews of the agency's own buildings to determine
whether they comply with the accessibility standards of the Architectural
Barriers Act, which is an aspect of a federal agency's assessment
of its own performance rather than of the performance of recipients.
State Department Compliance Reviews Initiated
Fiscal Year |
Total Compliance Reviews |
Section 504 Compliance Reviews |
1994 |
Not
provided |
Not
provided |
1995 |
Not
provided |
Not
provided |
1996 |
Not
provided |
Not
provided |
1997 |
Not
provided |
Not
provided |
1998 |
Not
provided |
Not
provided |
1999 |
Not
provided |
Not
provided |
2000 |
Not
provided |
Not
provided |
2001 |
22
|
22 |
2002 |
46
|
46 |
2003 |
30
(projected) |
30
(projected) |
Source: Agency information provided to Robert Ardinger,
July 2001
C. Data Collection Deficiencies
None of the agencies have developed information systems
that comprehensively collect, aggregate, or summarize detailed information
about complaints or compliance reviews and their outcomes. This
information is important both to the public and to consumers and
recipients. Among the information that should be readily available
are the numbers of complaints and compliance reviews initiated,
completed, and remaining for every fiscal year, which the agencies
discuss in congressional budget submissions but which are not readily
available publicly from any agency other than ED. Additionally,
data routinely compiled should include the length of investigations
and reviews, the issues or claims reviewed and findings on each,
detailed information about findings of compliance and noncompliance
made, and similarly detailed information about the ways complaints
and compliance reviews are resolved. The Department of Education
was the only agency that provided detailed information about the
length of time its investigations and reviews took.
These data are important in assessing trends and themes
in Section 504 issues, identifying the workload and the outcomes
of cases, and assessing the quality and quantity of work done. The
information is important to agencies for internal management purposes,
but it is also critically important to consumers, advocates, and
recipients, who rightfully expect to be informed about the types
of enforcement activities being conducted and their outcomes. DOJ
could provide useful assistance in developing technology that can
be used by all the agencies.
D. Agency Guidance on Section 504 Enforcement
Issues
Civil rights agencies examined in this report offer
a varying degree of information to the public about their work.
This report reviews the information available through agency Web
sites, because Web sites now contain much of the information that
is available in written form from federal agencies as well as some
information that is available only on the Internet. Agencies generally
have written information that is available through local and regional
offices, including information about how to file complaints. The
agencies' annual reports to Congress are also available publicly.
Some of the agency Web sites were user-friendly, while others proved
difficult to navigate.
The Department of Health and Human Services OCR has
a wide array of technical assistance materials available online.
The HHS Web site contains references to a large number of technical
assistance materials (easily accessed through a drop-down menu that
includes "civil rights" and "disabilities"), including complaint
filing information, fact sheets, regulations, and case summaries,
at www.hhs.gov/ocr/generalinfo.html
and www.hhs.gov/ocr/selectacts.
Notably, the case summaries include examples of HHS enforcement
actions and summaries of several resolutions of Section 504 complaints.
The civil rights resource page contains useful links to other federal
enforcement agencies. In addition, the HHS Web site offers information
on agency programs that serve people with disabilities and, in particular,
on agency efforts to implement the New Freedom Initiative advanced
by the Bush administration as a response to the Olmstead
decision discussed in the previous chapter (www.hss.gov/news/press/2002pres/disable.html).
The Department of Education's Web site has a number
of technical assistance materials, including a short list of frequently
asked questions, case decisions, and a useful description of OCR's
complaint investigation process, at www.ed.gov/offices/OCR/disabilityresources.html.
ED also has technical assistance materials directed at recipients,
including guidance on developing a nondiscrimination policy and
developing effective grievance policies and other similar resources
(www.ed.gov/offices/OCR/prevention.html).
ED provides an online complaint form for electronic filing, but
it was difficult to identify a mailing address for submission of
paper complaints.
ED uses a case resolution manual to guide its investigations.
Available on its Web site at www.ed.gov/offices/OCR/docs/ocrcrm.html,
the manual is a useful guide for parties to a complaint as well
as the public about investigation activities. In general, however,
ED's material is less detailed than the material provided by HHS.
Although DOL's Web site contains an extremely helpful
list of reasonable accommodation technical assistance guidance at
www.dol.gov/odep/pubs/publicat.htm,
this guidance is developed in the employment context as part of
DOL's materials on compliance with Section 503. In contrast, DOL
has limited materials about compliance with Section 504. There are
no Section 504 links readily available from DOL's home page. There
was no readily available information about filing Section 504 complaints,
the investigation process, or the obligations of recipients. DOL's
Section 504 regulations are available online at www.dol.gov/dol/allcfr/OASAM/Title_29/Part_32/toc.htm.
The Department of State's home page has no evident
link relating to civil rights obligations. A search for "Section
504," "disability," "complaint," and "civil rights" yielded no useful
results in the first 50 subjects identified from each search. Searches
did not provide access to information about filing complaints against
recipients, about disability rights, or about the obligations of
recipients to comply with Section 504, or about the Department's
delegation of its Section 504 enforcement responsibilities to the
Department of Education.
E. Agency Resources for Section 504
Compliance
Two key resources are required for an effective civil
rights enforcement program: adequate staffing and adequate funds
to support enforcement. Civil rights compliance is a labor-intensive
effort. Without sufficient staff, investigations and compliance
reviews may be delayed or deferred. Financial resources are required
to support investigations, pay for travel, provide training and
technical assistance materials, underwrite new initiatives, and
provide expertise that is not otherwise available to the agency.
The agency funding process is based on a combination
of agency funding requests and congressional action on those requests.
The budget process may permit as much as two years to pass between
preliminary actions to develop a budget proposal and use of the
funds. Because of inflation and the high costs associated with personnel
salaries and benefits, such as health care, retirement, and cost-of-living
increases--a flat-line appropriation likely represents a net loss
of staff and resources.
Funding of the civil rights function at HHS over the
past 10 years took a significant dip in the mid- 1990s. In the past
three years, it has noticeably increased.
HHS Appropriations ($ millions)
Fiscal Year |
President's Budget Request |
Congressional Appropriation |
1994 |
22.2
|
22.21 |
1995 |
22.4
|
21.9 |
1996 |
21.2
|
19.7* |
1997 |
21.8
|
20.0** |
1998 |
20.5
|
19.7 |
1999 |
20.7
|
20.6 |
2000 |
22.2
|
22.5*** |
2001 |
27.4
|
28.0 |
2002 |
32.0
|
32 |
2003 |
33.6 |
*Including $330,000 transfer
added on the Secretary's authority after this appropriation.
**Including $475,000 transfer added on the Secretary's
authority after this appropriation.
***Including $445,000 net transfer added on the Secretary's authority
after this appropriation.
Source: HHS budget information, FY 2003, documented by letter from
Robinsue Frohboese, Principal Deputy Director, HHS Office for Civil
Rights, to NCD, dated September 27, 2002
During the same period, OCR staffing patterns dropped
from their highest level in 1994, with a significant dip between
1998 and 2000, followed by recent staff increases. Levels of staff
dedicated to complaint processing took a similar dip. Neither has
returned to its 1994 levels.
HHS Staffing
Fiscal Year |
OCR Staff |
Complaint Processing Staff |
1994 |
284 |
141 |
1995 |
259 |
145 |
1996 |
242 |
129 |
1997 |
232 |
84 |
1998 |
216 |
74 |
1999 |
210 |
79 |
2000 |
215 |
74 |
2001 |
223 |
83 |
2002 |
273
(projected) |
96 (projected) |
2003 |
271
(projected) |
87 (projected) |
Source: HHS Budget justifications, 1996 2003, information
provided by HHS to NCD, August 2002
2. Department of Education, Office for Civil
Rights
The Department of Education's Office for Civil Rights
budget request and appropriations, like that of HHS, dropped slightly
in the middle of the 1990s.
ED Appropriations ($ millions)
Fiscal Year |
President's Budget Request |
Congressional Appropriation |
1994 |
56.6
|
56.6 |
1995 |
61.5
|
58.3 |
1996 |
62.8
|
55.3 |
1997 |
60
|
54.9 |
1998 |
61.5
|
61.5 |
1999 |
68
|
66 |
2000 |
73.3
|
71.2 |
2001 |
76
|
75.8 |
2002 |
79.9
|
79.9 |
2003 |
89.7
Projected |
Not
Provided |
Source: Department of Education's budget requests
and justifications, FY 2003, 2002, 2000, and 1998
During the same period, OCR staff also dropped from
a 1994 high of 821 staff to 681 staff in 1997. Up to FY 2003 (projected),
staff levels have not returned to their 1994 levels.
ED Staffing
Fiscal Year |
OCR Staffing |
Complaint Processing Staffing |
1994 |
821
|
Not
Provided |
1995 |
788
|
Not
Provided |
1996 |
745
|
Not
Provided |
1997 |
681
|
Not
Provided |
1998 |
685
|
Not
Provided |
1999 |
724
|
Not
Provided |
2000 |
712
|
Not
Provided |
2001 |
724
|
Not
Provided |
2002 |
714
|
Not
Provided |
2003 |
Not
Provided |
Not
Provided |
*Staffing numbers for complaint processing have not
been located in any published documents.
Source: Department of Education's budget requests and justifications,
FY 2003, 2002, 2000, and 1998
The DOL's Civil Rights Center has had a nearly flat-line
budget over the past 10 years. Funding levels in 2001 reflect virtually
no increase since 1994.
DOL Appropriations ($ millions)
Fiscal Year |
President's Budget Request |
Congressional Appropriation |
1994 |
4.9
|
4.9 |
1995 |
4.8
|
4.8 |
1996 |
4.5
|
4.5 |
1997 |
4.5
|
4.5 |
1998 |
4.6
|
4.5 |
1999 |
4.9
|
4.9 |
2000 |
5.7
|
5.6 |
2001 |
6.4
|
5.8 |
2002 |
5.8
|
5.8 |
2003 |
6.0
|
Not
Available |
Source: Letter from Patrick Pizzella, Assistant Secretary
for Administration and Management, DOL to NCD, October 4, 2002
Staffing of DOL's civil rights function has not seen
significant change since 1997. Given its static appropriation levels,
this is unsurprising. Projected staff levels in 2002 do not meet
even the minimal levels of 1994.
DOL Staffing
Fiscal Year |
OCR Staff |
Complaint Processing Staff |
1994 |
61
|
Not
Provided |
1995 |
60
|
Not
Provided |
1996 |
56
|
Not
Provided |
1997 |
52
|
Not
Provided |
1998 |
47
|
Not
Provided |
1999 |
52
|
Not
Provided |
2000 |
53
|
Not
Provided |
2001 |
53
|
Not
Provided |
2002 |
50
|
Not
Provided |
2003 |
48
|
Not
Provided |
Source: DOL annual budget submissions, 1997 2003
Astonishingly, the Department of State responded to
NCD's questions by saying that its OCR was fully funded and had
available all necessary resources for Section 504 compliance. State's
nonexistent Section 504 enforcement program indicates otherwise.
In fact, as discussed in Chapter 2, the Department of State delegated
its Section 504 enforcement responsibilities to the Department of
Education, with regard to the education institutions that constitute
most if not all of State's grantees. The Department's assurance
is not supported by the experience of other agencies that provide
outreach and education about Section 504 and its obligations to
people with disabilities. With no Section 504 complaints filed,
in theory, State needs no Section 504 enforcement funding at all.
A more realistic assessment is that if State performed its outreach
and education work more effectively, it would receive complaints
that would require resources to investigate or to refer to the Department
of Education. That is, if State were even performing its functions
effectively, under its agreement with the Department of Education,
the tiny resources that State devotes to Section 504 compliance
would be inadequate. The requisite intent to develop an effective
Section 504 program appears to be lacking at the Department of State.
State Department Appropriations ($ millions)
Fiscal Year |
President's Budget Request |
Congressional Appropriation |
1994 |
Not
Provided |
Not
Provided |
1995 |
Not
Provided |
Not
Provided |
1996 |
Not
Provided |
Not
Provided |
1997 |
Not
Provided |
Not
Provided |
1998 |
Not
Provided |
Not
Provided |
1999 |
1.0
|
Not
Provided |
2000 |
Not
Provided |
0.83 |
2001 |
Not
Provided |
0.800 |
2002 |
Not
Provided |
1.800* |
2003 |
0.800
(projected) |
Not
Available |
*Annual budget requests and appropriations were not
provided by the Department of State despite requests and were not
located in any published documents.
Source: Information provided to NCD, 2002
Staffing for State's civil rights enforcement function
has been almost nonexistent.
State Department Staffing
Fiscal Year |
Civil Rights Staffing |
Complaint Processing Staffing |
1994 |
Not
Provided |
Not
Provided |
1995 |
Not
Provided |
Not
Provided |
1996 |
Not
Provided |
Not
Provided |
1997 |
Not
Provided |
Not
Provided |
1998 |
12
|
Not
Provided |
1999 |
Not
Provided |
Not
Provided |
2000 |
Not
Provided |
Not
Provided |
2001 |
17
|
Not
Provided |
2002 |
25
|
6 |
2003 |
25
|
6 |
Source: Information provided to NCD, 2002
RECOMMENDATIONS
1. Conduct periodic and thorough Section 504
self-evaluations.
The agencies that are the subject of this report should
routinely reevaluate programs using self- evaluation(s) that identify
challenges to full participation by people with disabilities in
their programs, policies, regulations, and practices. Moreover,
all the agencies should assess legislation they propose, policies
they intend to publish, and regulations they draft to ensure that
each affirmatively furthers the goals of Section 504.
2. Improve data collection and dissemination of data
about Section 504 enforcement activities.
People with disabilities want to easily read data
about Agency 504 compliance. Such data include complaint filings
and compliance reviews initiated, specific Section 504 issues and
trends in complaint and compliance reviews, and outcomes and enforcement
actions. Routinely reporting Section 504 activities on their Web
sites would allow agencies to publicize Section 504 and ADA accomplishments.
DOJ should support and assist agencies in developing
and implementing more effective data collection systems.
3. Use funding sanctions to enforce Section 504.
Congress included an effective remedy to address discrimination
on the basis of disability by recipients of federal funds. Thus
far, the agencies studied in this report have not used funding sanctions
to bring recipients into compliance with Section 504, although notice
of the possibility of sanctions is generally given as part of agency
enforcement processes.
To combat disability discrimination in the most effective
way possible, federal agencies should use their sanctioning authority,
including making recipients ineligible to apply for continued or
new funding while they are not in compliance with federal civil
rights laws. This strategy could effectively be incorporated into
Notices of Funding Availability (NOFAs) and program eligibility
requirements, so that no recipient or potential recipient can be
funded while a preliminary or final finding of noncompliance is
pending. This strategy should become an integral part of agency
Section 504 enforcement efforts. Agencies should also develop and
apply a range of sanctions to help bring recipients of federal funds
into compliance with Section 504. Additionally, agencies should
publicize their efforts to maximize deterrence against violations
of the rights of people with disabilities.
4. Direct agency civil rights enforcement by the assistant
secretary.
HHS and DOL should review the impact of the Department
of Education's decision to have an assistant secretary lead its
Office for Civil Rights as a way of improving the visibility and
enforcement of Section 504 within each agency's funding programs.
In August 2001, State elevated the head of the Office of Civil Rights
to an assistant secretary, with no discernable change in the visibility
or enforcement of Section 504 for State's federally assisted grant
programs.
5. Increase funding for Section 504 enforcement.
This administration should continue to improve its
efforts to increase funding for civil rights enforcement. Presidential
budget requests and congressional appropriations for federal agency
civil rights enforcement should be adequate to staff those agencies
to conduct effective civil rights enforcement and compliance. Adequate
staffing is the most critical factor in providing prompt and effective
enforcement of Section 504. When appropriations and staffing drop,
the number of complaints investigated drop.
Three of the agencies' staffing levels should be restored,
at a minimum, to their 1994 staffing levels by FY 2004. The recommended
staffing level for HHS' OCR is 284; for ED's OCR, 821; and for DOL's
Civil Rights Center, 61. No recommendation for staffing for the
Department of State's Section 504 enforcement program for grantees
can be made because to date it has been nonexistent. Because there
is some correlation between the number of staff and the number of
complaints and compliance reviews conducted and resolved, it is
important that the agencies be funded and staffed at levels that
will support all the enforcement work necessary to ensure compliance
with Section 504 and protection of the rights of people with disabilities.
While there is no clear "bright line" standard for staffing civil
rights functions, this report recommends sustaining staffing at
1994 levels for a minimum of three years, followed by a comprehensive
evaluation and analysis of the results accomplished with staffing
levels that are more appropriate than the current low levels.
The Departments of Labor, Justice, and State should
evaluate their Section 504 programs according to their legislative
mandates and the Government Performance and Results Act standards.
None of the three agencies has provided sufficient staff, resources,
or stature within their departments, or coordination with other
civil rights offices, to have effective Section 504 programs. The
lack of Section 504 enforcement at the Department of State is so
significant that the Department of Justice should undertake a review
of the agency's Section 504 activities, including its education
and outreach, and make recommendations about strengthening its Section
504 enforcement program.
Agencies must be given enough resources to provide
training and technical assistance for their staffs, for consumers,
and for recipients. Limited resources should not require agencies
to limit enforcement, or to choose between technical assistance
and enforcement.
6. Improve leadership and guidance to agencies on Section
504 enforcement.
The Interagency Disability Coordinating Council (IDCC)
was created to provide critically needed leadership of disability
rights enforcement throughout the Federal Government, but it has
ceased to function. DOJ should revive the IDCC. DOJ should provide
substantive guidance to agencies to help them enforce Section 504,
including basic training and technical assistance, updates on key
court decisions, guidance on investigation and resolution of Section
504 complaints, and information to help agencies conduct effective
Section 504 compliance reviews. DOJ should create guidance specific
to Section 504 enforcement that builds on the agency's manuals on
enforcement of Title VI and Title IX. DOJ should use its authority
under Executive Order 12550 to review and comment on agency Annual
Implementation Reports, assess progress in agency activities, and
make recommendations for improvement. DOJ should also create and
make publicly available summaries of the information reported by
federal agencies in their Annual Implementation Reports, as well
as highlights of the Federal Government's enforcement of Section
504 compiled from other agency reports.
DOJ should perform a rigorous review of the Department
of State's lack of Section 504 complaint and compliance activities
and its education and outreach efforts to people with disabilities
and make recommendations to State about improvements to its Section
504 enforcement program.
DOJ should address DOL's misunderstanding of the self-evaluation
requirement of the Section 504 government-wide regulations, and
should require DOL to issue a Notice to all of its recipients, clarifying
their responsibility to conduct Section 504, or ADA, self-evaluations.
The Department of Justice should involve its funding
offices in its civil rights enforcement activities, ensuring that
the funding office understands, supports, and enforces the systemic
changes that are necessary when federal funds are involved in discriminatory
activity. The Disability Rights Section should ensure that the DOJ
funding offices understand the requirements of Section 504 and the
ADA.
7. Apply successful practices in Section 504 technical
assistance and enforcement used by federal agencies.
During the course of its study, NCD encountered a
number of successful practices that should be reviewed by other
federal agencies. For example, other federal agencies should review
the HHS Web site and consider producing relevant Section 504 information
in a user-friendly format. Even such basic information as how to
file a Section 504 complaint is not easily found on the other agencies'
Web sites. The HHS material is rich in detail and includes helpful
case studies and links to other relevant Web sites. Agencies should
also review and consider including in their Web sites information
similar to ED's technical assistance guidance to recipients and
DOL's list of reasonable accommodation information resources. In
addition, ED has successfully expanded its resources and effectiveness
in a number of ways. It has included disability experts in discussions
of activities that the community perceives as disability discrimination.
It has encouraged parents and students to monitor recipients' implementation
of compliance agreements. It has encouraged both school officials
and parents to suggest changes to compliance agreements that have
made them produce better results for students with disabilities.
It has established an intranet service that makes policies, decisions,
law review articles, regulations, handbooks, manuals, and letters
available to all civil rights staff. It has made it possible for
civil rights staff from different offices to communicate with each
other for the purpose of expanding and improving the approaches
they adopt to address common and novel discrimination issues. This
type of flexibility and creativity has the potential to improve
each federal agency's Section 504 enforcement program.
CONCLUSIONS
Section 504 was enacted to ensure that federal
agencies operated their programs and activities without discrimination
based on disability. Congress also intended the federal agencies
to address and correct the ways in which recipients of their funds
were discriminating against individuals with disabilities. The agencies
have had wide latitude to construct different types of Section 504
programs. Except for the Department of State, each of the agencies
in this report established various types of enforcement, training,
and technical assistance strategies to meet its Section 504 obligations.
Some developed much better funded and more successful training and
technical assistance programs than did others.
The political risk to an agency when it threatens
to withhold federal funds is real, and no civil rights office has
been able to construct and implement an effective enforcement program
without encouragement from the leadership of the agency itself,
bolstered by support from the administration and members of Congress.
That type of leadership, support, and dedication is not reflected.
Civil rights enforcement, to be most effective, must
be readily available to people with disabilities who believe that
they may be victims of discrimination or feel discriminated against,
and the results of enforcement actions that are taken must be easily
known. Reporting to the public about the results accomplished on
behalf of complainants and the changes accomplished through enforcement
is limited, with only ED making information about its enforcement
work available to the general public.
Discrimination in federally funded activities must
be effectively addressed. Without effective enforcement and program
initiatives, the Federal Government remains complicit in advancing
disability discrimination, because it lacks the tools to address
that discrimination consistently and meaningfully. It is painfully
clear that the availability of these tools depends on the level
of political will that is exerted to counteract discrimination.
Now is the time for that political will to be exerted. Each of the
agencies that has a Section 504 program has emphasized technical
assistance and training over enforcement. The Department of Labor
has created a new disability office and has funded it generously
to provide technical assistance and training. HHS has created a
new disability office to generate a more systemic, department-wide
focus on disability issues and provide more technical assistance
and training. ED has so limited its enforcement activities that
it points to the state Protection and Advocacy Systems for examples
of enforcement in its Olmstead Report. The Department of
State has neither an enforcement nor a technical assistance Section
504 program. DOJ has focused its attention on the ADA, the Fair
Housing Act, and the Civil Rights of Institutionalized Persons Act,
while underemphasizing its government-wide coordination responsibilities
and avoiding opportunities to enforce Section 504 through its own
grant programs.
Many of the agencies' actions, including their technical
assistance and training programs, have produced meaningful changes
in the lives of individuals with disabilities and in the equally
important perception of people with disabilities by the general
public. But none of these activities substitutes for ending the
expenditure of federal tax dollars on the establishment and perpetuation
of disability discrimination. That requires more courage, more leadership,
and more attention to the enforcement of our civil rights than people
with disabilities have seen thus far.
APPENDIX
MISSION OF THE NATIONAL COUNCIL ON DISABILITY Overview
and Purpose
The National Council on Disability (NCD) is an independent
federal agency with 15 members appointed by the President of the
United States and confirmed by the U.S. Senate. The overall purpose
of NCD is to promote policies, programs, practices, and procedures
that guarantee equal opportunity for all individuals with disabilities,
regardless of the nature or significance of the disability, and
to empower individuals with disabilities to achieve economic self-sufficiency,
independent living, and inclusion and integration into all aspects
of society.
Specific Duties
The current statutory mandate of NCD includes the
following:
- Reviewing and evaluating, on a continuing basis,
policies, programs, practices, and procedures concerning individuals
with disabilities conducted or assisted by federal departments
and agencies, including programs established or assisted under
the Rehabilitation Act of 1973, as amended, or under the Developmental
Disabilities Assistance and Bill of Rights Act, as well as all
statutes and regulations pertaining to federal programs that assist
such individuals with disabilities, in order to assess the effectiveness
of such policies, programs, practices, procedures, statutes, and
regulations in meeting the needs of individuals with disabilities.
- Reviewing and evaluating, on a continuing basis,
new and emerging disability policy issues affecting individuals
with disabilities at the federal, state, and local levels and
in the private sector, including the need for and coordination
of adult services, access to personal assistance services, school
reform efforts and the impact of such efforts on individuals with
disabilities, access to health care, and policies that act as
disincentives for individuals to seek and retain employment.
- Making recommendations to the President, Congress,
the secretary of education, the director of the National Institute
on Disability and Rehabilitation Research, and other officials
of federal agencies about ways to better promote equal opportunity,
economic self-sufficiency, independent living, and inclusion and
integration into all aspects of society for Americans with disabilities.
- Providing Congress, on a continuing basis, with
advice, recommendations, legislative proposals, and any additional
information that NCD or Congress deems appropriate.
- Gathering information about the implementation,
effectiveness, and impact of the Americans with Disabilities Act
of 1990 (42 U.S.C. 12101 et seq.).
- Advising the President, Congress, the commissioner
of the Rehabilitation Services Administration, the assistant secretary
for Special Education and Rehabilitative Services within the Department
of Education, and the director of the National Institute on Disability
and Rehabilitation Research on the development of the programs
to be carried out under the Rehabilitation Act of 1973, as amended.
- Providing advice to the commissioner of the Rehabilitation
Services Administration with respect to the policies and conduct
of the administration.
- Making recommendations to the director of the National
Institute on Disability and Rehabilitation Research on ways to
improve research, service, administration, and the collection,
dissemination, and implementation of research findings affecting
persons with disabilities.
- Providing advice regarding priorities for the activities
of the Interagency Disability Coordinating Council and reviewing
the recommendations of this council for legislative and administrative
changes to ensure that such recommendations are consistent with
NCD's purpose of promoting the full integration, independence,
and productivity of individuals with disabilities.
- Preparing and submitting to the President and Congress
an annual report titled National
Disability Policy: A Progress Report.
International
In 1995, NCD was designated by the Department of State
to be the U.S. government's official contact point for disability
issues. Specifically, NCD interacts with the special rapporteur
of the United Nations Commission for Social Development on disability
matters.
Consumers Served and Current Activities
Although many government agencies deal with issues
and programs affecting people with disabilities, NCD is the only
federal agency charged with addressing, analyzing, and making recommendations
on issues of public policy that affect people with disabilities
regardless of age, disability type, perceived employment potential,
economic need, specific functional ability, veteran status, or other
individual circumstance. NCD recognizes its unique opportunity to
facilitate independent living, community integration, and employment
opportunities for people with disabilities by ensuring an informed
and coordinated approach to addressing the concerns of people with
disabilities and eliminating barriers to their active participation
in community and family life.NCD plays a major role in developing
disability policy in America. In fact, NCD originally proposed what
eventually became the Americans with Disabilities Act.
NCD's present list of key issues includes improving
personal assistance services, promoting health care reform, including
students with disabilities in high-quality programs in typical neighborhood
schools, promoting equal employment and community housing opportunities,
monitoring the implementation of the ADA, improving assistive technology,
and ensuring that those persons with disabilities who are members
of diverse cultures fully participate in society.
Statutory History
NCD was initially established in 1978 as an advisory
board within the Department of Education (P.L. 95-602). The Rehabilitation
Act Amendments of 1984 (P.L. 98-221) transformed NCD into an independent
agency. |