In a September 7, 2010 opinion, the U.S. Court of Appeals for the Ninth Circuit upheld a long-standing federal regulation under the Americans with Disabilities Act that holds government entities responsible for making their programs, services and activities accessible to persons with disabilities, even when the government contracts with other entities to provide the services.  Michael Bien argued the appeal on behalf of the class of persons with disabilities.

The decision arises from a long-standing class action lawsuit regarding California’s programs for state prisoners and parolees with disabilities. State officials had contended that when it subcontracted some programs to county jails, the State was relieved from any responsibility for ensuring program access for persons with disabilities. The Court said in effect that the State could not wash its hands of its responsibilities simply by subcontracting.   

One of the reasons that this is a significant decision is that the State was challenging the scope of the ADA — specifically regulations promulgated under Title II of the Act that deal with public entities.  The Justice Department was concerned enough about this challenge to file their own brief supporting the plaintiffs’ position and also participated in oral arguments.  The Court emphatically rejected the State’s arguments, which is an important legal finding for those who seek to enforce the ADA against government entities.

In a September 8, 2010 article in the San Francisco Daily Journal, RBG’s Michael Bien, lead attorney for the plaintiffs in the action, said, “The state took the extreme position that the court has no power over this situation.  The state said, ‘Go sue the county.’ But the court said the state does have to take responsibility here.”  Bien went on to say in the article, “It will not necessarily cost much for state prison officials to ensure that counties comply with the disabilities act. A state law already mandates such compliance.”  The San Francisco Chronicle also covered the decision in an article entitled, “U.S. Court Sets New Hearing on Disabled Inmates.”