42 U.S.C. § 12134 — Regulations

Page 8247 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12134 SECTION 1. Policy. This order is issued consistent with the following findings and principles: (a) The United States is committed to community- based alternatives for individuals with disabilities and recognizes that such services advance the best interests of Americans. (b) The United States seeks to ensure that America’s community-based programs effectively foster independ- ence and participation in the community for Ameri- cans with disabilities. (c) Unjustified isolation or segregation of qualified individuals with disabilities through institutionaliza- tion is a form of disability-based discrimination prohib- ited by Title II of the Americans With Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 [12131] et seq. States must avoid disability-based discrimination unless doing so would fundamentally alter the nature of the service, program, or activity provided by the State. (d) In Olmstead v. L.C., 527 U.S. 581 (1999) (the ‘‘Olmstead decision’’), the Supreme Court construed Title II of the ADA [42 U.S.C. 12131 et seq.] to require States to place qualified individuals with mental dis- abilities in community settings, rather than in institu- tions, whenever treatment professionals determine that such placement is appropriate, the affected persons do not oppose such placement, and the State can reason- ably accommodate the placement, taking into account the resources available to the State and the needs of others with disabilities. (e) The Federal Government must assist States and localities to implement swiftly the Olmstead decision, so as to help ensure that all Americans have the oppor- tunity to live close to their families and friends, to live more independently, to engage in productive employ- ment, and to participate in community life. SEC. 2. Swift Implementation of the Olmstead Decision: Agency Responsibilities. (a) The Attorney General, the Secretaries of Health and Human Services, Education, Labor, and Housing and Urban Development, and the Commissioner of the Social Security Administration shall work cooperatively to ensure that the Olmstead decision is implemented in a timely manner. Specifi- cally, the designated agencies should work with States to help them assess their compliance with the Olmstead decision and the ADA [42 U.S.C. 12101 et seq.] in pro- viding services to qualified individuals with disabilities in community-based settings, as long as such services are appropriate to the needs of those individuals. These agencies should provide technical guidance and work cooperatively with States to achieve the goals of Title II of the ADA [42 U.S.C. 12131 et seq.], particularly where States have chosen to develop comprehensive, ef- fectively working plans to provide services to qualified individuals with disabilities in the most integrated set- tings. These agencies should also ensure that existing Federal resources are used in the most effective man- ner to support the goals of the ADA. The Secretary of Health and Human Services shall take the lead in co- ordinating these efforts. (b) The Attorney General, the Secretaries of Health and Human Services, Education, Labor, and Housing and Urban Development, and the Commissioner of the Social Security Administration shall evaluate the poli- cies, programs, statutes, and regulations of their re- spective agencies to determine whether any should be revised or modified to improve the availability of com- munity-based services for qualified individuals with disabilities. The review shall focus on identifying af- fected populations, improving the flow of information about supports in the community, and removing bar- riers that impede opportunities for community place- ment. The review should ensure the involvement of consumers, advocacy organizations, providers, and rel- evant agency representatives. Each agency head should report to the President, through the Secretary of Health and Human Services, with the results of their evaluation within 120 days. (c) The Attorney General and the Secretary of Health and Human Services shall fully enforce Title II of the ADA, including investigating and resolving complaints filed on behalf of individuals who allege that they have been the victims of unjustified institutionalization. Whenever possible, the Department of Justice and the Department of Health and Human Services should work cooperatively with States to resolve these complaints, and should use alternative dispute resolution to bring these complaints to a quick and constructive resolu- tion. (d) The agency actions directed by this order shall be done consistent with this Administration’s budget. SEC. 3. Judicial Review. Nothing in this order shall af- fect any otherwise available judicial review of agency action. This order is intended only to improve the in- ternal management of the Federal Government and does not create any right or benefit, substantive or pro- cedural, enforceable at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person. GEORGE W. BUSH. § 12132. Discrimination Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public enti- ty, or be subjected to discrimination by any such entity. (Pub. L. 101–336, title II, § 202, July 26, 1990, 104 Stat. 337.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 18 months after July 26, 1990, see section 205(a) of Pub. L. 101–336, set out as a note under section 12131 of this title. § 12133. Enforcement The remedies, procedures, and rights set forth in section 794a of title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title. (Pub. L. 101–336, title II, § 203, July 26, 1990, 104 Stat. 337.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 18 months after July 26, 1990, see section 205(a) of Pub. L. 101–336, set out as a note under section 12131 of this title. § 12134. Regulations (a) In general Not later than 1 year after July 26, 1990, the Attorney General shall promulgate regulations in an accessible format that implement this part. Such regulations shall not include any matter within the scope of the authority of the Secretary of Transportation under section 12143, 12149, or 12164 of this title. (b) Relationship to other regulations Except for ‘‘program accessibility, existing fa- cilities’’, and ‘‘communications’’, regulations under subsection (a) shall be consistent with this chapter and with the coordination regula- tions under part 41 of title 28, Code of Federal Regulations (as promulgated by the Department Page 8248 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 12141 of Health, Education, and Welfare on January 13, 1978), applicable to recipients of Federal fi- nancial assistance under section 794 of title 29. With respect to ‘‘program accessibility, existing facilities’’, and ‘‘communications’’, such regula- tions shall be consistent with regulations and analysis as in part 39 of title 28 of the Code of Federal Regulations, applicable to federally con- ducted activities under section 794 of title 29. (c) Standards Regulations under subsection (a) shall include standards applicable to facilities and vehicles covered by this part, other than facilities, sta- tions, rail passenger cars, and vehicles covered by part B. Such standards shall be consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board in accordance with section 12204(a) of this title. (Pub. L. 101–336, title II, § 204, July 26, 1990, 104 Stat. 337.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (b), was in the original ‘‘this Act’’, meaning Pub. L. 101–336, July 26, 1990, 104 Stat. 327, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 12101 of this title and Tables. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective July 26, 1990, see section 205(b) of Pub. L. 101–336, set out as a note under section 12131 of this title. PART B—ACTIONS APPLICABLE TO PUBLIC TRANSPORTATION PROVIDED BY PUBLIC ENTI- TIES CONSIDERED DISCRIMINATORY SUBPART I—PUBLIC TRANSPORTATION OTHER THAN BY AIRCRAFT OR CERTAIN RAIL OPERATIONS § 12141. Definitions As used in this subpart: (1) Demand responsive system The term ‘‘demand responsive system’’ means any system of providing designated public transportation which is not a fixed route system. (2) Designated public transportation The term ‘‘designated public transpor- tation’’ means transportation (other than pub- lic school transportation) by bus, rail, or any other conveyance (other than transportation by aircraft or intercity or commuter rail transportation (as defined in section 12161 of this title)) that provides the general public with general or special service (including char- ter service) on a regular and continuing basis. (3) Fixed route system The term ‘‘fixed route system’’ means a sys- tem of providing designated public transpor- tation on which a vehicle is operated along a prescribed route according to a fixed schedule. (4) Operates The term ‘‘operates’’, as used with respect to a fixed route system or demand responsive system, includes operation of such system by a person under a contractual or other arrange- ment or relationship with a public entity. (5) Public school transportation The term ‘‘public school transportation’’ means transportation by schoolbus vehicles of schoolchildren, personnel, and equipment to and from a public elementary or secondary school and school-related activities. (6) Secretary The term ‘‘Secretary’’ means the Secretary of Transportation. (Pub. L. 101–336, title II, § 221, July 26, 1990, 104 Stat. 338.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 101–336, title II, § 231, July 26, 1990, 104 Stat. 346, provided that: ‘‘(a) GENERAL RULE.—Except as provided in sub- section (b), this part [part I (§§ 221–231) of subtitle B of title II of Pub. L. 101–336, enacting this subpart] shall become effective 18 months after the date of enactment of this Act [July 26, 1990]. ‘‘(b) EXCEPTION.—Sections 222, 223 (other than sub- section (a)), 224, 225, 227(b), 228(b), and 229 [sections 12142, 12143(b) to (f), 12144, 12145, 12147(b), 12148(b), and 12149 of this title] shall become effective on the date of enactment of this Act.’’ § 12142. Public entities operating fixed route sys- tems (a) Purchase and lease of new vehicles It shall be considered discrimination for pur- poses of section 12132 of this title and section 794 of title 29 for a public entity which operates a fixed route system to purchase or lease a new bus, a new rapid rail vehicle, a new light rail ve- hicle, or any other new vehicle to be used on such system, if the solicitation for such pur- chase or lease is made after the 30th day fol- lowing July 26, 1990, and if such bus, rail vehicle, or other vehicle is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. (b) Purchase and lease of used vehicles Subject to subsection (c)(1), it shall be consid- ered discrimination for purposes of section 12132 of this title and section 794 of title 29 for a pub- lic entity which operates a fixed route system to purchase or lease, after the 30th day following July 26, 1990, a used vehicle for use on such sys- tem unless such entity makes demonstrated good faith efforts to purchase or lease a used ve- hicle for use on such system that is readily ac- cessible to and usable by individuals with dis- abilities, including individuals who use wheel- chairs. (c) Remanufactured vehicles (1) General rule Except as provided in paragraph (2), it shall be considered discrimination for purposes of section 12132 of this title and section 794 of title 29 for a public entity which operates a fixed route system— (A) to remanufacture a vehicle for use on such system so as to extend its usable life