Volume 25
Issue 1
Fall '17

Enforcing the Americans with Disabilities Act for the “Invisibly Disabled”: Not a Handout, Just a Hand

Written By: Arianna Cernius


I’m speaking of course of the disabled. They have stated they don’t want a hand out just a hand. We are happy to give them one.
-Carl Karcher1

It is 6:30 AM, and a line is already forming outside the Department of Public and Social Services (DPSS).2 One man in the line with paranoid schizophrenia is aware he needs General Relief (GR) state-provided subsistence benefits meant to cover basic needs like food and shelter, but at the same time, accuses the building’s occupants of working with the Mafia.3 Several people in the line have autism, and spend the next hour and a half swaying back and forth and talking to themselves as they wait for the building to officially open.4 At 8:00 AM the building finally opens.5 Everyone must “take off their belts, empty their pockets, put their possessions in a plastic bowl and sometimes take off their shoes” in order to pass through a security checkpoint.6 One man with severe anxiety makes it through the line outside, but must be rushed to the hospital when he panics and begins to have seizures at the sight of security.7 Presence is mandatory in order to file a GR application, so he will have to come back next week and try again.8 Those who survive the long wait and withstand the pressure of security must then find the GR application line inside and wait again until they are finally able to get an application from an employee sitting behind bulletproof glass.9 One mentally ill applicant crawls under a desk for several hours while waiting for his name to  be called—he does not understand how to fill out his application, and is struggling in a crowded and noisy waiting area.10

Meanwhile, a man in a wheelchair arrives promptly at 8:00 AM, bypassing the line outside to an appointment that he scheduled online with an application that he filled out in advance. He calls DPSS security, articulates his special access needs, and is shown to the side of the building with a ramp.11 As the wheelchair-using man departs from the building following his appointment, he hears an employee yell over the public address system for the people in the waiting room to “quiet down or they would ‘miss [their] name[s] being called.’”12 Some of the waiting room occupants leave with the man in the wheelchair.13 The long lines, uncertain wait time, and fear of not hearing their names called above the noise in the crowded room are too much for them to bear, and they give up.14 The wheelchair-using applicant is disabled, just as the mentally ill and intellectually and/or developmentally disabled (I/DD) applicants are disabled, but because the man in the wheelchair’s disability was understood and his need for accommodations communicated, his access to the public benefits system was facilitated by the accommodation of a wheelchair ramp, while those with mental illnesses and I/DDs—whose abilities and limitations are less understood and less likely to be communicated—had their access denied.

People with mental illness and I/DDs historically have struggled, and continue to struggle for societal acceptance and understanding.15 This population “has never existed before in [the United States] to the extent it does today. [And c]onsequently, only recently has society become aware that this underserved and underrepresented community is . . . in need of a broad range of services and improved access to those services [that will] allow its members to participate in society.”16 U.S. Centers for Disease Control and prevention (CDC) data shows that the number of children diagnosed with autism increased by almost 300 percent between 1997 and 2008, and that the prevalence of developmental disabilities in general increased by 17 percent.17 While much focus has been placed on the needs of the mentally ill and I/DD population during childhood—such as the development of special education law and centers to provide supports and therapy—the needs of the growing, aging mentally ill and I/DD population have gone largely unaddressed.18 Consequently, people with mental illnesses and I/DDs who do not have outside support and who do not receive the appropriate rehabilitative care are more likely to be dependent on society and government benefits in their adult lives.19 Data collected by the federal government shows that increases in homelessness have paralleled the increase in prevalence of mental illness and I/DDs.20 In Los Angeles County (L.A. County), it is estimated that between thirty to fourty percent of the 46,874 homeless people suffer from serious mental illnesses and/or I/DDs.21 And in the broader United States, the numbers are similarly devastating: in 2016, one count found that 202,297 people with mental illnesses and cognitive disabilities were homeless.22 Like other counties in many other states23 across the U.S., L.A. County is mandated to “provid[e] a minimal cash allowance for the most basic needs such as food and shelter” for its indigent and homeless residents through its GR program.24 However, for that portion of the homeless and indigent population that suffers from mental illness and I/DDs, arguably the most needy and helpless members of society, the nature of their disability often impedes their ability to access GR.25 This particularly vulnerable segment of the population is largely unable to navigate the complex bureaucratic process mandated by DPSS, including complex paperwork that is daunting even for those who are not disabled, and a mandatory, in-person application process in an environment that is crowded, noisy, and requires waiting in line for a long or indefinite time.26

The Americans with Disabilities Act (ADA)27 is “a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all places that are open to the general public.”28 It has the goal of “mak[ing] sure that people with disabilities have the same rights and opportunities as everyone else.”29 The ADA’s Title II sets forth the duties of state and local governments and bars discrimination on the basis of disability by “public entities,” which include any departments, agencies, or other instrumentalities of state and local governments, and all programs, services, and activities operated by these public entities.30 Accordingly, the public entity must make sure its programs, services, and activities are accessible to individuals with disabilities, and provide “reasonable modifications to policies, practices, and procedures where [the modifications are] necessary to avoid discrimination on the basis of disability.”31 Since counties are local governments, and DPSS is a government social services agency that provides public programs like GR, DPSS falls under the purview of Title II, and has a duty to make reasonable accommodations32 where necessary to avoid discrimination.

In theory, all “disabled”33 people are protected under Title II’s command to public entities to provide reasonable accommodations if a person cannot access a service or program because of a disability.34 But in reality, the ADA has more effectively facilitated access for those with visible disabilities or those who possess communicative and comprehension abilities, leaving those with invisible disabilities who lack the ability to communicate and comprehend, like people with mental illnesses and I/DDs, underserved.35 The ADA only requires public entities to accommodate known disabilities, and a person’s disability can only be known if it is obvious or if the person makes his or her disability known by articulating a need for accommodations.36 Thus, even though the ADA intended to protect people with invisible disabilities like mental illness and I/DDs, it has failed to provide a solution for dealing with this population of people whose disabilities are not readily apparent and who also are commonly unable to make their disabilities known by requesting accommodations.37 While people with mental illness and I/DDs need accommodations to facilitate their access to society and programs like GR just as people who have visible disabilities do, the essence of invisible disabilities—in other words, what mental illness and I/DDs prevent the people who have them from doing—is not as well understood as the ways physical disabilities can impede a person’s access.38

One place where this gap in understanding can be witnessed is blocked access to GR. It is definitional to many mental illnesses and I/DDs that those who are diagnosed lack a basic understanding of the world around them, present with behaviors that seem abnormal or aggravating to others, and lack the ability to communicate or the awareness that communication is necessary.39 Such qualities put people with mental illness and I/DDs in a particularly vulnerable position when it comes to navigating the bureaucracy required to access public benefits like GR,40 a process that is merely annoying to both their non-disabled peers and disabled peers whose communication and comprehension abilities are not impaired.41 That those with mental illness and I/DDs have difficulty accessing the relief system and are often defeated by bureaucratic structure is evident in L.A. County, where at least thirty percent of GR applicants suffer from serious mental illnesses or I/DDs but the county consistently identifies only eight percent of GR applicants as requiring special assistance to navigate the GR application process.42 These numbers are not unique to L.A. County and are reflected in the counties of other states, making it clear that the barriers are real and that this population is chronically under-identified throughout the United States.43

A GR application process so complex that it inhibits access to GR by the mentally ill and I/DD population in a country where the incidence of mental illness and I/DDs is increasing presents a significant problem because access to public benefits is crucial to their survival and their participation in the fullness of daily life.44 This denial of access problem is worsened by the fact that the ADA, the statute intended to protect the most vulnerable in society through the provision of reasonable accommodations, bases provision of this protection on the visibility of the disability or alternatively, on the ability of the disabled person to make their disability known.45 This leaves those with mental illnesses and I/DDs, whose disabilities are less visible and commonly characterized by an inability to communicate as well as a lack of awareness that accommodations are necessary, to fend for themselves or simply be repeatedly denied access. Thus, the current construct of the ADA reflects a lack of consideration of the nature of mental illness and I/DDs, and presents a catch-22 for this population. These people, who are extremely vulnerable and in need of ADA protections, are unable to access its protections precisely because of their unique characteristics—because they cannot communicate to make the specific request that would allow them to access relief under the ADA.

This Article focuses on the L.A. County GR program as a case study to show how the process of applying for GR creates extreme suffering for people with mental illness and I/DDs, often precluding them from applying for and receiving the benefits they need to survive. While it is important for the ADA to be properly implemented for people with disabilities in relation to all public benefits, it is especially critical that the ADA be working properly in affording equal access within the GR program due to the implications of being denied GR. GR is considered a last resort, “catch-all” benefit.46 If an individual has applied for federal or other state benefits but has had their application denied or has been terminated from these systems, the state-provided GR benefit is the last barrier standing between the individual and destitution. The invisibly disabled frequently have their applications for more stable federal or other state benefits denied or are terminated from these programs because of their inability to self-advocate when problems arise with obtaining and maintaining those benefits.47 Theoretically, the GR system is in place to catch these individuals and prevent them from becoming homeless, but because the ADA is not properly implemented for this population, they do not have the necessary access, and many of them are prevented from obtaining GR and end up on the streets. They fall through the cracks of the system that was put in place to catch them when they fall through the cracks. In other words, the ADA—which was created to protect a broad range of people with disabilities and not just those who are physically or visibly disabled—has failed to protect one of its largest and most vulnerable populations.

This Article argues that the spirit and command of the ADA is to protect not just people who are obviously disabled or who have the ability to communicate their disabilities, but also those with impactful disabilities like mental illness and I/DDs whose disabilities are invisible and for whom deficient communicative and comprehension abilities commonly accompany their diagnosis. When the population that public entities like government benefit providers and service agencies encounter on a daily basis is known to have many times the prevalence rate of mental illnesses and I/DDs than the general population, these public entities only fulfill the affirmative duty assigned to them by the ADA if they effectively screen everyone in order to identify those who cannot identify themselves. Part II of this Article details the history of the disability rights movement and disability policy in the United States, and it lays out the conceptual development of the ADA, particularly the language and content of Title II. Part III describes the GR program in L.A. County, characterizes the population of mentally ill and I/DD people and how their disabilities get overlooked, and explains how DPSS should be held accountable as a public entity under Title II. Part IV explores possible solutions to improve access for people with mental illness and I/DDs, and argues that the most productive change would be to alter the interpretation of the ADA’s anti-discrimination accommodations provision for known disabilities. I argue that if a public entity has constructive notice that a large population of people needing accommodations is unable to ask for them, those entities should have a duty to introduce effective screening.

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1. Carl Karcher, ABILITY MAG. (2005), http://www.abilitymagazine.com/teresa_karcher.html. Carl Karcher, the founder of Carl’s Jr., former active member of the Republican Party, and father of two children who survived polio and another who survived Guillain-Barré, speaking about how his business practices, particularly with hiring and accessibility, have integrated the Americans with Disabilities Act (ADA). Id.

2. See DISABILITY RIGHTS LEGAL CTR. ET AL., HOW DPSS FAILS THE MOST VULNERABLE: BARRIERS TO THOSE WITH MENTAL DISABILITIES TO OBTAIN GENERAL RELIEF 5 (2016), http://disabilityrightsadvocacycenter.org/wp-content/uploads/sites/2/2016/08/How-DPSS-Fails-the-Most-Vulnerable-1.pdf. Much of the scenario described in the introduction is drawn from the characterization of the conditions of the General Relief application process found in the aforementioned Disability Rights Legal Center source, as well as the author’s observation of individuals waiting to apply for GR, and is meant to be a representation of a typical day for this population at this particular agency—the Department of Public and Social Services (DPSS). See also Margaret Holub, The Hurdles Are High for Homeless Who Try to Get General Relief, L.A. TIMES (Dec. 22, 1987), http://articles.latimes.com/1987-12-22/local/me-30444_1_general-relief.

3. See DISABILITY RIGHTS LEGAL CTR. ET AL., supra note 2, at 6.

4. Id.

5. See id. at 5.

6. See id.

7. Id. at 4.

8. Id.

9. Id. at 5.

10. See id. at 5–6.

11. See supra text accompanying note 2.

12. See DISABILITY RIGHTS LEGAL CTR. ET AL., supra note 2, at 5.

13. See id. at 6; see also supra text accompanying note 2.

14. See DISABILITY RIGHTS LEGAL CTR. ET AL., supra note 2, at 5–6.

15. See A Brief History of the Disability Rights Movement, ANTI-DEFAMATION LEAGUE, https:// www.adl.org/education/resources/backgrounders/disability-rights-movement (last visited Sept. 1, 2017); see also Apanya Bhattacharya & Heather Long, American Still Leaves the Disabled Behind, CNN MONEY (Jul. 26, 2015, 9:19 AM), http://money.cnn.com/2015/07/26/news/economy/americans-with-disabilities-act-problems-remain/.

16. Ariana Cernius, Note, “No Imbecile at All”: How California Won the Autism Insurance Reform Battle, and Why Its Model Should Be Replicated in Other States, 10 HARV. L. & POL’Y REV. 565, 567 (2016); see also Key Findings: Trends in the Prevalence of Developmental Disabilities in U.S. Children, 1997-2008, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/ncbddd/developmental disabilities/features/birthdefects-dd-keyfindings.html (last updated Feb. 12, 2015) (showing that the prevalence of individuals with developmental disabilities has increased greatly); Marcia Angell, The Epidemic of Mental Illness: Why?, N.Y. REV. OF BOOKS (June 23, 2011), http://www.nybooks.com/ articles/2011/06/23/epidemic-mental-illness-why/ (discussing the increase in prevalence of individuals with mental illness).

17. Salynn Boyles, Developmental Disabilities on the Rise in U.S.: CDC Survey Shows Increase in Autism, ADHD, and Other Conditions in Children, WEBMD (May 23, 2011), http://www.webmd.com/ children/news/20110523/developmental-disabilities-on-the-rise-in-the-us (noting an increase in the percentage of children with a diagnosis from 0.2 percent to 0.7 percent); see also Coleen A. Boyle et al., Trends in the Prevalence of Developmental Disabilities in US Children, 1997–1998, 127 PEDIATRICS 1034, 1037 (2011); CTRS. FOR DISEASE CONTROL & PREVENTION, supra note 16.

18. Samuel R. Bagenstos, The Disability Cliff, 35 DEMOCRACY J. 55, 55–57 (2015) [hereinafter Bagenstos, Disability Cliff]. As Samuel Bagenstos, Professor of Law at University of Michigan Law School and disability expert, states: “[w]e’re pretty good about caring for our disabled citizens—as long as they’re children. It’s time to put equal thought into their adulthoods.” Id. at 55.

19. Cf. Cernius, supra note 16, at 573–74. This is likely due to the impact of mental illness on the lives of those living with such disabilities.

“Serious mental illnesses disrupt people’s ability to carry out essential aspects of daily life, such as self care and household management. Mental illnesses may also prevent people from forming and maintaining stable relationships or cause people to misinterpret others’ guidance and react irrationally. This often results in pushing away caregivers, family, and friends who may be the force keeping that person from becoming homeless.”

Mental Illness and Homelessness, NAT’L COAL. FOR THE HOMELESS (July 2009), http:// www.nationalhomeless.org/factsheets/Mental_Illness.pdf. The New York Times reported, “On any night, there are 1,000 to 1,200 people sleeping on the streets of Berkeley . . . Half of them are deinstitutionalized mentally ill people. It’s like a mental ward on the streets.” Evelyn Nieves, Fed Up, Berkeley Begins Crackdown on Homeless, N.Y. TIMES (Nov. 3, 1998), http://www.nytimes.com/1998/ 11/03/us/fed-up-berkeley-begins-crackdown-on-homeless.html?_r=0 (quoting Sally Hindman, executive director of the Chapliancy for the Homeless).

20. See 250,000 Mentally Ill Are Homeless. The Number Is Increasing, MENTAL ILLNESS POL’Y ORG., http://mentalillnesspolicy.org/consequences/homeless-mentally-ill.html [hereinafter “250,000 Mentally Ill”] (“Mental illness is a major contributor to homelessness.”). The Mental Illness Policy Organization has noted:

“The homeless population, especially homeless people with mental illnesses, has increased steadily since the 1970s. This increase is seen in all major cities, but also in smaller cities and towns. For example, in Roanoke, Virginia, the homeless population increased 363 percent between 1987 and 2007, and “70 percent were receiving mental health treatment or had in the past.””

Id. (quoting Laurence Hammack & Mason Adams, Roanoke Turns Its Focus on Homeless, ROANOKE TIMES (Dec. 15, 2007, 7:00 PM), http://www.roanoke.com/webmin/news/roanoke-turns-its-focus-on-homeless/article_0449a5e8-f769-50cb-ba4f-cebbf4db6c49.html). In cataloguing the growth of instances of mental illness, the Mental Illness Policy Organization has further noted:

“In Bangor, Maine, a homeless shelter opened in 1987 with ten beds, but by 2007, the shelter had thirty-three beds “with a dozen paid staff members” to care for “people with a range of mental and physical health problems coupled with extreme poverty.””

Id. (quoting Dawn Gagnon, Role of Maine Shelters in Flux; No Longer Just for the ‘Homeless,’ Facilities Serve the Mentally Ill and Addicted, BANGOR DAILY NEWS (Dec. 11, 2007), http://web.archive. org/web/20130902045957/http://archive.bangordailynews.com/2007/12/11/role-of-maine-shelters-in-flux -no-longer-just-for-the-homeless-facilities-serve-the-mentally-ill-and-addicted).

21. DISABILITY RIGHTS LEGAL CTR. ET AL, supra note 2, at 1. This count of the homeless population in Los Angeles County (L.A. County) is current as of 2016, and includes numbers reported from Glendale, Long Beach, and Pasadena. It represents a 5.7 percent increase in the homeless population since the 2015 survey. L.A. HOMELESS SERVS. AUTH., 2016 HOMELESS COUNT RESULTS: LOS ANGELES COUNTY AND LA CONTINUUM OF CARE 4, http://documents.lahsa.org/Planning/ homelesscount/2016/factsheet/2016-HC-Results.pdf (last updated May 10, 2016). A study released in 2015 by the U.S. Department of Housing and Urban Development reports that “Los Angeles city and county have the most chronically homeless people in the country, and nearly all of them sleep on the streets.” Gale Holland, L.A. Tops Nation in Chronic Homeless Population, L.A. TIMES (Nov. 19, 2015, 8:08 PM), http://www.latimes.com/local/california/la-me-homeless-national-numbers-20151120-story. html. According to the figures, which exclude statistics from Pasadena, Long Beach, and Glendale, because they administer their homeless programs separately, “L.A.’s chronically homeless population has grown 55%, to 12,536, since 2013. . . . More than one-third of the nation’s chronically homeless live in California.” Id. For more information or to view the full study, see OFFICE OF CMTY. PLANNING & DEV., U.S. DEP’T OF HOUS. & URBAN DEV., THE 2015 ANNUAL HOMELESS ASSESSMENT REPORT (AHAR) TO CONGRESS (2015).

22. See Homelessness and Housing, SUBSTANCE ABUSE & MENTAL HEALTH SERVS. ADMIN., http://www.samhsa.gov/homelessness-housing (last updated Sept. 15, 2017).

23. Liz Schott & Misha Hill, State General Assistance Programs Are Weakening Despite Increased Need, CTR. ON BUDGET & POLICY PRIORITIES (July 9, 2015), http://www.cbpp.org/research/family-income-support/state-general-assistance-programs-are-weakening-despite-increased.

24. DISABILITY RIGHTS LEGAL CTR. ET AL., supra note 2, at 1.

25. See id.; cf. Holland, supra note 21 (“The government classifies disabled people who go without housing for a year, or who land in the street several times over three years, as chronically homeless. These individuals are the most vulnerable and visible among the ranks of the homeless.”).

26. DISABILITY RIGHTS LEGAL CTR. ET AL., supra note 2, at 5–6.

27. Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213 (2012).

28. What Is the Americans with Disabilities Act (ADA)?, ADA NAT’L NETWORK, https://adata.org/ learn-about-ada (last visited Oct. 16, 2017) (hereinafter What is the ADA?).

29. Id.

30. Id.; see also 42 U.S.C. § 12131.

31. What Is the ADA?, supra note 28.

32. This Article uses “modifications” and “accommodations” interchangeably. Whether equating these terms is a sound interpretation of the ADA is a question for another article.

33. It is important to note that “disability” for purposes of the ADA, is a legal term, and thus does not necessarily equate to the medical definition of disability. What the term, “disability,” encompasses or should encompass is a subject for another article, and thus, will not be discussed in depth in this work. However, generally, the ADA defines a person with a disability as “a person who has a physical or mental impairment that substantially limits one or more major life activity,” and the ADA is meant to protect all those who fall under the definition of “disabled.” 42 U.S.C. § 12101. For more information regarding the ADA’s definition of “disability,” see JACQUIE BRENNAN, THE ADA NATIONAL NETWORK DISABILITY LAW HANDBOOK 1–5 (2013), http://adata.org/publication/disability-law-handbook.

34. See DISABILITY RIGHTS LEGAL CTR. ET AL., supra note 2, at 10–11.

35. See id. at 11–12.

36. Title II of the Americans with Disabilities Act (ADA) provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. “Congress empowered the Department of Justice to promulgate regulations interpreting the ADA. Those regulations provide that public entities must ‘make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability.’” DISABILITY RIGHTS LEGAL CTR. ET AL., supra note 2, at 10 (quoting 28 C.F.R. § 35.130(b)(7) (2016)). While the language of the Act does not distinctly require accommodations for known disabilities, the requirement of known disabilities is at times explicitly referenced in the regulations of the Act, which are responsible for interpreting the Act’s language so it can be implemented. For example, Title II regulation Section 35.130(g) interprets the general prohibitions against discrimination of the law to mean that “[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.” 28 C.F.R. § 35.130(g) (2016). Even without the regulation’s interpretation, however, an implied requirement of the ADA is that the disability be known in order for a person to receive accommodations, since in order for a modification to be provided, the person responsible for modifications must be aware of the disability.

37. DISABILITY RIGHTS LEGAL CTR. ET AL., supra note 2, at 11–12.

38. See Gary L. Blasi, Litigation on Behalf of the Homeless: Systematic Approaches, 31 WASH. U. J. URB. & CONTEMP. L. 137, 141 (1987) (“Whether by design or not, the application process may present to a mentally disabled homeless person as insurmountable an obstacle as does a stairway to a paraplegic.”).

39. Autism, for example, is characterized by developmental abnormality in three areas: “[d]eficits in reciprocal social interaction skills; [d]eficits in communication skills; [and p]resence of stereotypical behavior, interests, and activities,” and “[a]lthough symptoms are unique in intensity and combination for every individual, common features include delayed speech or lack of speech; repetitive, obsessive actions; inflexible adherence to routine; unusual sensitivity to light, sound, or tough; and lack of social or emotional reciprocity.” LORI S. UNUMB & DANIEL R. UNUMB, AUTISM AND THE LAW: CASES, STATUTES, AND MATERIALS 3 (2011); see also Cernius, supra note 16, at 566–69.

40. See DISABILITY RIGHTS LEGAL CTR. ET AL., supra note 2, at 7–10.

41. See DISABILITY RIGHTS LEGAL CTR. ET AL., supra note 2, at 6.

42. DISABILITY RIGHTS LEGAL CTR. ET AL., supra note 2, at 2.

43. See, e.g., Sam P.K. Collins, How New York City Plans to Treat Homeless People’s Mental Health Problems, THINKPROGRESS (Aug. 7, 2015, 4:29 PM), http://thinkprogress.org/health/2015/08/07/ 3689358/nyc-safe-initiative; see also 250,000 Mentally Ill, supra note 20.

44. The importance of public benefits in the daily lives of the invisibly disabled will be discussed in greater depth in Part III.B.

45. The ADA’s deficiencies in facilitating the accommodation of those with invisible disabilities due to conditioning the provision of reasonable accommodations under the ADA upon having a known disability will be discussed further in Part II.C.2.

46. See DISABILITY RIGHTS LEGAL CTR. ET AL., supra note 2, at 3.

47. See infra Part III.C.