{"id":28,"date":"2018-02-05T16:54:59","date_gmt":"2018-02-05T21:54:59","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/poverty-journal\/?page_id=28"},"modified":"2025-05-12T11:12:38","modified_gmt":"2025-05-12T15:12:38","slug":"enforcing-the-americans-with-disabilities-act-for-the-invisibly-disabled-not-a-handout-just-a-hand","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/poverty-journal\/in-print\/volume-25-issue-1-fall-2017\/enforcing-the-americans-with-disabilities-act-for-the-invisibly-disabled-not-a-handout-just-a-hand\/","title":{"rendered":"Enforcing the Americans with Disabilities Act for the \u201cInvisibly Disabled\u201d: Not a Handout, Just a Hand"},"content":{"rendered":"

I\u2019m speaking of course of the disabled. They have stated they don\u2019t want a hand out just a hand. We are happy to give them one.
\n-Carl Karcher1<\/sup><\/p><\/blockquote>\n

It is 6:30 AM, and a line is already forming outside the Department of Public and Social Services (DPSS).2<\/sup> 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\u2019s occupants of working with the Mafia.3<\/sup> 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<\/sup> At 8:00 AM the building finally opens.5<\/sup> Everyone must \u201ctake off their belts, empty their pockets, put their possessions in a plastic bowl and sometimes take off their shoes\u201d in order to pass through a security checkpoint.6<\/sup> 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<\/sup> Presence is mandatory in order to file a GR application, so he will have to come back next week and try again.8<\/sup> 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<\/sup> One mentally ill applicant crawls under a desk for several hours while waiting for his name to \u00a0be called\u2014he does not understand how to fill out his application, and is struggling in a crowded and noisy waiting area.10<\/sup><\/p>\n

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 \u201cquiet down or they would \u2018miss [their] name[s] being called.\u2019\u201d12<\/sup> Some of the waiting room occupants leave with the man in the wheelchair.13<\/sup> 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<\/sup> 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\u2019s 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\u2014whose abilities and limitations are less understood and less likely to be communicated\u2014had their access denied.<\/p>\n

People with mental illness and I\/DDs historically have struggled, and continue to struggle for societal acceptance and understanding.15<\/sup> This population \u201chas 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.\u201d16<\/sup> 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<\/sup> While much focus has been placed on the needs of the mentally ill and I\/DD population during childhood\u2014such as the development of special education law and centers to provide supports and therapy\u2014the needs of the growing, aging mentally ill and I\/DD population have gone largely unaddressed.18<\/sup> 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<\/sup> Data collected by the federal government shows that increases in homelessness have paralleled the increase in prevalence of mental illness and I\/DDs.20<\/sup> 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<\/sup> 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<\/sup> Like other counties in many other states23<\/sup> across the U.S., L.A. County is mandated to \u201cprovid[e] a minimal cash allowance for the most basic needs such as food and shelter\u201d for its indigent and homeless residents through its GR program.24<\/sup> 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<\/sup> 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<\/sup><\/p>\n

The Americans with Disabilities Act (ADA)27<\/sup> is \u201ca 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.\u201d28<\/sup> It has the goal of \u201cmak[ing] sure that people with disabilities have the same rights and opportunities as everyone else.\u201d29<\/sup> The ADA\u2019s Title II sets forth the duties of state and local governments and bars discrimination on the basis of disability by \u201cpublic entities,\u201d 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<\/sup> Accordingly, the public entity must make sure its programs, services, and activities are accessible to individuals with disabilities, and provide \u201creasonable modifications to policies, practices, and procedures where [the modifications are] necessary to avoid discrimination on the basis of disability.\u201d31<\/sup> 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<\/sup> where necessary to avoid discrimination.<\/p>\n

In theory, all \u201cdisabled\u201d33<\/sup> people are protected under Title II\u2019s command to public entities to provide reasonable accommodations if a person cannot access a service or program because of a disability.34<\/sup> 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<\/sup> The ADA only requires public entities to accommodate known disabilities, and a person\u2019s 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<\/sup> 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<\/sup> 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\u2014in other words, what mental illness and I\/DDs prevent the people who have them from doing\u2014is not as well understood as the ways physical disabilities can impede a person\u2019s access.38<\/sup><\/p>\n

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<\/sup> 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<\/sup> a process that is merely annoying to both their non-disabled peers and disabled peers whose communication and comprehension abilities are not impaired.41<\/sup> 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<\/sup> 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<\/sup><\/p>\n

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<\/sup> 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<\/sup> 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\u2014because they cannot communicate to make the specific request that would allow them to access relief under the ADA.<\/p>\n

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, \u201ccatch-all\u201d benefit.46<\/sup> 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<\/sup> 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\u2014which was created to protect a broad range of people with disabilities and not just those who are physically or visibly disabled\u2014has failed to protect one of its largest and most vulnerable populations.<\/p>\n

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\u2019s 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.<\/p>\n","protected":false},"excerpt":{"rendered":"

I\u2019m speaking of course of the disabled. They have stated they don\u2019t want a hand out just a hand. We are happy to give them one. -Carl Karcher1 It is […]<\/p>\n","protected":false},"author":28,"featured_media":0,"parent":36,"menu_order":1,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-28","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/poverty-journal\/wp-json\/wp\/v2\/pages\/28","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/poverty-journal\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/poverty-journal\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/poverty-journal\/wp-json\/wp\/v2\/users\/28"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/poverty-journal\/wp-json\/wp\/v2\/comments?post=28"}],"version-history":[{"count":1,"href":"https:\/\/www.law.georgetown.edu\/poverty-journal\/wp-json\/wp\/v2\/pages\/28\/revisions"}],"predecessor-version":[{"id":954,"href":"https:\/\/www.law.georgetown.edu\/poverty-journal\/wp-json\/wp\/v2\/pages\/28\/revisions\/954"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/poverty-journal\/wp-json\/wp\/v2\/pages\/36"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/poverty-journal\/wp-json\/wp\/v2\/media?parent=28"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}