August 8, 2023

Rachel Patterson, Director of Disability Policy, Domestic Policy Council, White House

Anna Perng, Senior Advisor, Office of Public Engagement, White House

Jennifer Mathis, Deputy Assistant Attorney General, Civil Rights Division, Department of Justice (DOJ)

Shoba Sivaprasad Wadhia, Officer, Civil Rights and Civil Liberties, Department of Homeland Security (DHS)

Rebekah Tosado, Chief, Antidiscrimination Group, Office for Civil Rights and Civil Liberties, DHS

Deanne Criswell, Administrator, Federal Emergency Management Agency (FEMA)

Leslie Saucedo, Director, Office of Equal Rights, FEMA

Sherman Gillums, Director, Office of Disability Integration and Coordination, FEMA

Melanie Fontes Rainer, Director, Office for Civil Rights, U.S. Department of Health and Human Services (HHS)

Dawn O’Connell, Assistant Secretary for Preparedness and Response, Administration for Strategic Preparedness and Response (ASPR)

Alison Barkoff, Acting Administrator and Assistant Secretary for Aging, Administration for Community Living (ACL)

Andrés Gallegos, Chairman, National Council on Disability (NCD)

 

Dear Federal Colleagues,

We are writing to express our alarm about what appears to be a pattern and practice of the federal government demonstrating a lack of understanding, and failure to comply with its obligations under the Rehabilitation Act of 1973 (Rehab Act) 29 U.S.C. § 701 et seq.

Recent actions and statements illuminate a gross misunderstanding of who has civil rights protections and who may not. The federal government has continually perpetuated the misconception that people with disabilities and people with access and functional needs are the same. This indicates confusion by government representatives about the status of people with access and functional needs as members of a protected class. While people with disabilities may have access and functional needs, many people with access and functional needs do not have a disability nor are they protected under disability civil rights laws. It is imperative the federal government demonstrates the difference and fulfills their legal obligations to people with disabilities. Further, when the federal government’s misrepresentation trickles down to state, territorial, and local governments it results in increased misunderstanding and non-compliance, and often harm, at every level of government. This is compounded by a vast lack of oversight of federal funds spent or allocated to state or local government and other grantees and subgrantees to ensure that these funds are spent in compliance with obligations under the Rehabilitation Act.

Unfortunately, examples of the federal government’s failure to convey accurate information and comply with disability rights law are abundant and growing. 

For example, twelve federal agencies are listed as contributors to the new heat.gov website, yet the website is not in compliance with obligations under Section 508 of the Rehabilitation Act. The disability community is shocked by the lack of respect for disabled people’s lives and our inherent civil rights protections. This was amplified by the website listing those “at risk” from extreme heat as: children, athletes, older adults, outdoor workers, pregnant people, and pets, while excluding people with disabilities. Although it is critical that pets are protected in extreme heat, it is appalling that their needs are prioritized over humans with disabilities.

Ironically, lack of understanding of legal rights of people with disabilities was demonstrated recently in FEMA’s statement commemorating the 33rd anniversary of the Americans With Disabilities Act (ADA) of 1990, 42 U.S.C. § 12101 et seq. (1990). In that statement, FEMA expressed that “the ADA guides FEMA’s commitment to improving services and programs to be equitably available to people with disabilities and others with access and functional needs.” It went on to state that “when the act passed in 1990, it provided civil rights legislation that protects people with disabilities from discrimination by federal agencies and federally funded programs. The law ensures that FEMA and our partners have a strong foundation to work together so that disaster survivors with disabilities have equitable access to services and programs, while preserving their independence.”

This statement conflates FEMA’s obligations under section 504 and other sections of the Rehabilitation Act of 1973 with obligations of state and local government entities under the ADA. The federal government and its grantees and subgrantees derive their obligations from the Rehab Act, not the ADA. The Rehab Act has been in place since 1973 while the ADA was passed in 1990. As disability rights activists, many of us worked tirelessly to support the private sector as well as state and local government entities in understanding what their obligations are under the ADA and their duty to comply with them. We should not have to inform or correct the federal government about their 50-year-old civil rights obligations. Disabled people should not have to correct the federal government‘s messaging and continually call for enforcement of federal government mandates.  

Other examples of non-compliance with Rehab Act obligations include the National Oceanic and Atmospheric Administration (NOAA)’s lack of 508 compliant weather maps which have been repeatedly brought to the agency’s attention by the Department of Homeland Security’s Office of Civil Rights and Civil Liberties to no avail. This renders a significant portion of the population unable to take personal protective measures in extreme weather.

Additionally, the recently published FEMA Response and Recovery Climate Change Planning Guidance fails to list the Rehab Act under authorities and references to disability and obligations to people with disabilities are not meaningfully included in the document.

We request a timeline for rectifying non-compliance and failure to include people with disabilities in the heat.gov website, the July 2023 FEMA Climate Change Guidance, the NOAA website, and other instances of non-compliance and lack of inclusion, no later than September 1, 2023. We also request a timeline to implement a plan for instructing  federal agencies about their obligations under the Rehabilitation Act and the distinction between people with disabilities and people with access and functional needs by September 1, 2023. It is critical that plans to correct this are in place by the start of National Preparedness Month.

We will make ourselves available to discuss immediate steps toward meeting your compliance with your federal disability rights obligations. However, we expect to hear concrete plans for moving forward.

These matters are of the utmost urgency. We await your next steps.

Sincerely,

Access Ready Inc.

American Association of People with Disabilities (AAPD)

Association of Programs for Rural Independent Living (APRIL)

Autistic People of Color Fund

Autistic Self Advocacy Network

Autistic Women & Nonbinary Network

Center for Disability Rights-CT

Center for Independence 

Christopher & Dana Reeve Foundation 

Connecticut Cross Disability Lifespan Alliance

Connecticut State Independent Living Council

Consortium for Constituents with Disabilities (CCD) Emergency Management Task Force

Disabilities Network of Eastern CT

Disability Empowerment Center

Independence Northwest, Inc.

Independent Living Research Utilization (ILRU)

National Association of Statewide Independent Living Councils (NA SILC)

National Association of the Deaf (NAD)

National Council on Independent Living (NCIL)

National Disability Rights Network (NDRN)

Peer 2 Peer Imperial County

RespectAbility

RRCI

Statewide Independent Living Council of Alaska

Summit Independent Living

The Partnership for Inclusive Disaster Strategies

Tri County Independent living

Vibrant Emotional Health 

World Institute on Disability (WID)