SUPPLEMENTARY INFORMATION:

On June 22, 2011, the Department issued a guidance document titled, “Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. ” ^[1] The Olmstead Guidance states, “To assist individuals in understanding their rights under Title II of the ADA and its integration mandate, and to assist state and local governments in complying with the ADA, the Department of Justice has created this technical assistance guide.” It provides eighteen questions and answers regarding enforcement of the Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999).

The Olmstead Guidance concludes: “Guidance documents posted to this website are not intended to be a final agency action, have no legally binding effect, and have no force or effect of law. The documents may be rescinded or modified in the Department's complete discretion, in accordance with applicable laws. The Department's guidance documents, including this guidance, do not establish legally enforceable responsibilities beyond what is required by the terms of the applicable statutes, regulations, or binding judicial precedent.” ^[2] This is consistent with Supreme Court jurisprudence, which has held that guidance documents “do not have the force and effect of law.” Perez v. Mortgage Bankers Ass'n, 575 U.S. 92, 97 (2015) (quoting Shalala v. Guernsey Mem'l Hosp., 514 U.S. 87, 99 (1995)). Despite the non-enforceable nature of the Olmstead Guidance, numerous courts have treated the Olmstead Guidance as authoritative. See Davis v. Shah, 821 F.3d 231, 263 (2d Cir. 2016); Pashby v. Delia, 709 F.3d 307, 322 (4th Cir. 2013); Waskul v. Washtenaw Cnty. Cmty. Mental Health, 979 F.3d 426, 460-61 (6th Cir. 2020); Steimel v. Wernert, 823 F.3d 902, 914 (7th Cir. ( printed page 45288) 2016); but see United States v. Mississippi, 82 F.4th 387, 393-94 (5th Cir. 2023). The Department is concerned about confusion over the non-enforceable nature of the Olmstead Guidance and issues this clarification that the Olmstead Guidance is not enforceable.

Further, the Olmstead Guidance was issued prior to the Supreme Court's decision in Loper Bright, 603 U.S. at 400, which held that agency interpretations must be consistent with the “single, best meaning” of the statute authorizing them. For these reasons, the Department plans to revisit the Olmstead Guidance in light of Loper Bright to determine whether the Olmstead Guidance is consistent with the “single, best meaning” of the ADA. The Department will not rely upon the Olmstead Guidance in its enforcement of Title II of the ADA.

91 FR 45287