Administrative Declaratory Judgment or Declaratory Order

Federal RULE-MAKING, Administrative Declaratory Judgment or Declaratory Order & Administrative enforcement

formal rule-making and "the integration mandate"

28 CFR § 35.130

General prohibitions against discrimination.

§ 35.130 General prohibitions against discrimination.

(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.

(b)

(1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability -

(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;

(iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;

(v) Aid or perpetuate discrimination against a qualified individual with a disability by providing significant assistance to an agency, organization, or person that discriminates on the basis of disability in providing any aid, benefit, or service to beneficiaries of the public entity's program;

(vi) Deny a qualified individual with a disability the opportunity to participate as a member of planning or advisory boards;

(vii) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.

(2) A public entity may not deny a qualified individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.

(3) A public entity may not, directly or through contractual or other arrangements, utilize criteria or methods of administration:

(i) That have the effect of subjecting qualified individuals with disabilities to discrimination on the basis of disability;

(ii) That have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the public entity's program with respect to individuals with disabilities; or

(iii) That perpetuate the discrimination of another public entity if both public entities are subject to common administrative control or are agencies of the same State.

(4) A public entity may not, in determining the site or location of a facility, make selections -

(i) That have the effect of excluding individuals with disabilities from, denying them the benefits of, or otherwise subjecting them to discrimination; or

(ii) That have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the service, program, or activity with respect to individuals with disabilities.

(5) A public entity, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability.

(6) A public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a public entity establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.

(7)

(i) A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.

(ii) A public entity is not required to provide a reasonable modification to an individual who meets the definition of “disability” solely under the “regarded as” prong of the definition of “disability” at § 35.108(a)(1)(iii).

(8) A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.

(c) Nothing in this part prohibits a public entity from providing benefits, services, or advantages to individuals with disabilities, or to a particular class of individuals with disabilities beyond those required by this part.

["THE INTEGRATION MANDATE"]

(d) A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.

(e)

(1) Nothing in this part shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit provided under the ADA or this part which such individual chooses not to accept.

(2) Nothing in the Act or this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual.

(f) A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.

(g) A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.

(h) A public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities. However, the public entity must ensure that its safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.

(i) Nothing in this part shall provide the basis for a claim that an individual without a disability was subject to discrimination because of a lack of disability, including a claim that an individual with a disability was granted a reasonable modification that was denied to an individual without a disability.

The Integration Mandate 28 CFR § 35.130 (d), Olmstead, Etc.

The US Supreme Court decided Olmstead based on the Integration Mandate on Title II of the Americans with Disabilities Act.

Title II address Public Entities, Programs and Services.

So the problem that people with disabilities have been running into for the past 20 years since Olmstead was decided is largely with ENFORCEMENT.

On the one hand, ENFORCEMENT should be easier because of subsequent caselaw and US Department of Justice Guidance, but that ENFORCEMENT is anything BUT certain due to Cost Constraints.

What we found is that the vast majority of States do not have Services and Housing for people significant disabilities to SCALE nor do that have Comprehensive, Effectively Working Olmstead Plans with:

Measurable Goals
Reasonable Time Frames or
Funding to Support the Plan

These incomplete findings probably need to be thoroughly investigated by an Independent Body such as the Inspector General or General Accounting Office.

It was Inspector General and General Accounting Office reports that ultimately led to additional rule-making around Medicaid Network Adequacy.

We do believe that Medicaid must avoid DISCRIMINATORY PRACTICES and cover necessary Housing and Placement for people needing Long Term Care, and who by definition are at the most risk of institutionalization.

Further, we believe US Department of Justice Guidance needs to be incorporated into the Code of Federal Regulations with appropriate Notice and Comment.

Broad Problems in Disability Civil Rights Law Non-compliance

Administrative Rule-making VS. Declaratory Orders

So Federal & even Private Olmstead Enforcement has had some pretty TOWERING LEGAL ACHIEVEMENTS that non-involved States have promptly IGNORED.

While some of the issues involving State Olmstead Compliance may be NARROW and appropriate for Administrative Declaratory Judgment, most of what we need probably should be taken through a NOTICE and COMMENT PROCESS of Rule-making.

A good place to start would be to translate the US Department of Justice's 2011 Olmstead Guidance into proposed regulations and submit for Comment.

Also, we need formalized procedures to Require State Plans of Correction to achieve State compliance with Olmstead.

THE BOTTOM LINE: For Olmstead Compliance, we need

Federal Administrative Enforcement
Technical Assistance to the States
Reasonable Plans of Correction.

ADMINISTRATIVE DECLARATORY ORDERS GENERALLY USED FOR "NARROW" ISSUES

Wyoming Law Professor Emily Bremer's observations on the wide variety of purposes for Administrative Declaratory Orders. See Ohio Law Review Article Below.

The case law demonstrates, however, that there is a wide variety of purposes for which an agency may properly use a declaratory order, including to:

(1) interpret the agency’s governing statute or own regulations;

(2) define terms of art;

(3) clarify whether a matter falls within federal regulatory authority; or

(4) address questions of preemption.

The device also offers a way for an agency to provide regulated parties with advance notice of how the agency will apply existing regulations to new or novel proceeding, because the narrow and known factual context makes clear the identity of any affected state or local authorities or interests.

Even in the absence of novelty, an agency can provide targeted guidance to regulated parties by declaring how existing regulatory requirements apply to a defined factual context.

Administrative Rule-making & Declaratory Order

Introduction to Wyoming Law Professor Emily Bremer's Ohio Law Review Article [to the Right, Below]

INTRODUCTION

Providing clarity and certainty is an enduring challenge of administrative governance, particularly in the regulatory context.

Faced with uncertainty about how an agency will regulate a project or transaction, businesses and individuals may be unable or unwilling to act.

The consequences for the economy, society, and technological progress can be significant and harmful.

Uncertainty can also make an agency’s job more difficult and expensive by reducing compliance rates and increasing the need for the agency to actively monitor regulated entities and enforce regulatory requirements.

To address these and related problems, agencies routinely provide advice about how they will interpret and apply statutes and regulations.

Selecting the best policymaking tool for agency advice giving is a deceptively challenging task. An agency generally has broad discretion to choose among the tools that Congress has given it, and each such tool has its own advantages and disadvantages.

RULE-MAKING

A legislative rule may provide the most reliable information about regulatory requirements to the greatest number of affected entities because it is generally applicable and has the “force and effect of law.”

The rulemaking process, however, is frequently described as “ossified” and can be too expensive and time consuming for an agency to undertake.

Investing agency resources in rulemaking may be particularly inappropriate if the agency seeks to address a narrow issue or to provide clarity regarding the interpretation or application of an existing regulation.

ADJUDICATION

Adjudication may offer a better procedural vehicle for providing fact-specific or targeted advice, but it too may require a significant investment of agency resources, which may not be worthwhile if the agency needs only to clarify a legal interpretation or policy matter.

The most obvious alternative form of agency advice giving is the nonlegislative rule, which is often referred to as “informal guidance” and may include a wide variety of agency materials. Guidance is generally easy and inexpensive to produce, as it is unencumbered by the Administrative Procedure

Act’s (APA) procedural requirements and can be made readily available to the public online.

But guidance has no legal effect: an agency cannot enforce it against regulated parties, and a regulated party cannot use it to shield itself from an enforcement action if the agency later changes its view.

Courts, concerned that agencies are routinely evading rulemaking requirements by issuing guidance, have in recent decades shown a greater willingness to scrutinize an agency’s classification and use of guidance.

In these cases, agencies are much less likely to receive Chevron deference or enjoy a substantial likelihood of prevailing, as they do on judicial review of a notice-and-comment rulemaking or formal adjudication.
When it enacted the APA in 1946, Congress included a provision designed to address these various difficulties. In § 5(d), codified at 5 U.S.C. § 554(e), it provided that an “agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.”

AGENCY DECLARATORY ORDER

A declaratory order may be issued in response to a petition filed with the agency or on the agency’s own motion.

It is well tailored to provide just the level of certainty required to overcome the deficiency of more informal kinds of guidance.

This is because it is noncoercive and yet legally binds the agency and the named party, but only on the facts assumed in the order, and the agency remains free to change its position with adequate explanation in a subsequent proceeding.

In short, it has some legal effect.

The declaratory order is a device that affords substantial administrative discretion—the agency may decline a request to institute a declaratory proceeding or to issue a particular declaratory order.

AGENCY's DECISION JUDICIALLY REVIEWABLE BUT SCOPE OF REVIEW LIMITED

An agency’s decision, be it a denial of a petition or the issuance of a declaratory order, is judicially reviewable.

But the scope of review is limited, and the position an agency takes in a declaratory order is typically afforded deference, both on judicial review and when relevant to matters at issue in subsequent or parallel litigation.

FEDERAL AGENCIES HAVE LARGELY OVERLOOKED THE ADMINISTRATIVE DECLARATORY ORDER

Among the many policymaking forms available to federal agencies, the declaratory order has been largely overlooked.

Despite its apparent usefulness, agencies have demonstrated a persistent reluctance to use it.

A variety of explanations have been offered to explain this reluctance, but two bear special mention. First, for many decades, the prevailing view was that the placement of the APA’s declaratory orders provision within § 5, governing formal adjudication, limited the device to that context.

Under this view, an agency could not issue a declaratory order through informal adjudication or use such an order to address a matter not subject by statute to adjudication under the APA.

This considerably limited the availability of the device.

Second, agencies have expressed a strong disinclination to legally bind themselves, preferring to offer advice through informal, nonbinding guidance that was generally immune from judicial review.

ReWire News: Disabled People Have Had the Legal Right to Live in Their Communities for 20 Years. But That’s Still Not the Reality for Many. (June 18, 2019)

A Word About State Creativity & Innovation In Disability Civil Rights Compliance.

We're for it. On the other hand, it can often be an excuse for FLAGRANT DISREGARD of Disability CIvil Rights Laws due to some pretty POWERFUL Political & Financial Realities.

After numerous negative Federal Reports, the Centers for Medicare and Medicare Services (CMS) finally issued stronger regulations regarding MEDICAID NETWORK ADEQUACY. Even more is needed probably in the form of DETAILED TEMPLATES.

Further, we really need HUD FUNDS conditioned on STATE Compliance with a Comprehensive and Effectively working HOUSING OLMSTEAD Plan for People with Disabilities who are Institutionalized or at Great Risk of Institiutionalization.

We need RULE-MAKING regarding Olmstead and the need for:

Measurable Goals
Reasonable Time Frames, and
Funding to Support the Plan.

We need a lot of DETAILED GUIDANCE so STATES can get there. ADVOCATES, Protection & Advocacy for People with Disabilities Offices and Even the US Department of Justice don't have the RESOURCES to LITIGATE all these issues.

There is also a role for the ADMINISTRATIVE DECLARATORY ORDER, we will look at that more Sunday.

The Article proceeds in three parts.

PART II: ESSENTIAL ATTRIBUTES OF DECLARATORY ORDERS

Part II analyzes the declaratory order’s essential attributes, argues that the device may be used in informal adjudication, and examines the history of agency use (and nonuse) of declaratory orders.

PART III: LEGAL ISSUES REGARDING JUDICIAL REVIEW OF DECLARATORY ORDERS

Part III explores legal issues that arise in connection with judicial review of declaratory orders. These issues shed further light on the nature of the device and may also bear on its usefulness to administrative agencies.

PART IV: PROPER USES OF DECLARATORY ORDERS

Part IV catalogs the proper uses of declaratory orders, considers analogous forms of agency advice giving, and argues that agencies should use declaratory orders more frequently and creatively to improve agency policymaking and the administration of federal regulatory statutes.

Administrative GUIDANCE: A brave new world

Administrative Guidance has been used by Courts to:

Interpret Statutes & Regulations and Rules passed through the Legislative Process
or Regulations and Rules interpreting those Statutes passed by Executive Agencies under Federal and/or State Administrative Procedures Acts.

Administrative Guidance is outside of the Legislative Process and/or Administrative Procedures Act. There is A LOT OF TENSION among various Interests:

Ease & Practicality
Complicated Subject Matter
Need for members of the Public and Interested Parties to Raise Concerns,
Need for Accountability
Etc.

Recently, the US Department of Justice limited the use of Guidance Documents in Affirmative Civil Enforcement Actions.

This is NOT necessarily a bad thing if Federal Agencies engage Stakeholders in the work of:

Regulations
Rules
Administrative Declaratory Judgments , and
Administrative Declaratory Orders

We have based a lot of our arguments on Subsequent Caselaw and US Department of Justice Guidance on Olmstead :

Measurable Goals
Reasonable Time Frames, and
Funding to Support the Plan.

We need the US Department of Justice Disability Civil Rights Section to address this Issue. Many advocates may be concerned about this CALL FOR CLARITY at this time.

Nonetheless, the lack of clear and precise rules have not brought compliance with Olmstead.