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State and Local Government

Introduction

Title II of the ADA

Title II of the ADA, prohibits discrimination on the basis of disability by public entities. Title II states that no qualified individual with a disability shall, on the basis of 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 public entity. Public entities must ensure that people with disabilities have equal access to the services, programs, and activities offered by state and local government entities, delivered in the most integrated manner possible.

 

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Title II requirement: program accessibility

Under Title II, all services, programs, and activities of a public entity must be "readily accessible to and usable by" people with disabilities.  The public entity can accomplish program accessibility in a number of ways, including:

        1. modifying policies, practices or procedures

        2. acquiring adaptive equipment or a communication device

        3. through the provision of services at alternate accessible sites

Examples of a public entity making its services, programs and activities accessible include: written documents and publications are available in braille, an interpreter who knows American Sign Language is on staff, someone is allowed to take a test using a computer, or a person is allowed to take a test orally or in a small room without distractions.

Contracting and licensing

A public entity may not discriminate on the basis of disability in contracting for the purchase of goods and services. Moreover, a public entity may not discriminate on the basis of disability in its licensing, certification, and regulatory activities. A person is a "qualified individual with a disability" with respect to licensing or certification, if he or she can meet the essential eligibility requirements for receiving the license or certification. The phrase "essential eligibility requirements" is particularly important in the context of State licensing requirements. While many programs and activities of public entities do not have significant qualification requirements, licensing programs often do require applicants to demonstrate specific skills, knowledge, and abilities. Public entities may not discriminate against qualified individuals with disabilities who apply for licenses, but may consider factors related to the disability in determining whether the individual is "qualified."

For example, an individual is not "qualified" for a driver's license unless he or she can operate a motor vehicle safely. A public entity may establish requirements, such as vision requirements, that would exclude some individuals with disabilities, if those requirements are essential for the safe operation of a motor vehicle.  Yet, the public entity may only adopt "essential" requirements for safe operation of a motor vehicle. Denying a license to all individuals who have missing limbs, for example, would be discriminatory if an individual who could operate a vehicle safely without use of the missing limb were denied a license. A public entity, however, could impose appropriate restrictions as a condition to obtaining a license, such as requiring an individual who is unable to use foot controls to use hand controls when operating a vehicle.

A public entity does not have to lower or eliminate licensing standards that are essential to the licensed activity to accommodate an individual with a disability. Whether a specific requirement is "essential" will depend on the facts of the particular case. Where a public entity administers licensing examinations, it must provide auxiliary aids for applicants with disabilities and administer the examinations in accessible locations.

In addition, a public entity may not establish requirements for the programs or activities of licensees that tend to screen out individuals with disabilities. For example, a State prohibits the licensing of transportation companies that employ individuals with missing limbs as drivers. A company refuses to hire an individual with a missing limb who is "qualified" to perform the essential functions of the job, because he is able to drive safely with hand controls. The State's licensing requirements violate title II.

Program vs. physical accessibility

Physical accessibility refers to the structure of the facility: A physically accessible facility may have ramps, elevators with braille or doors that are easily opened.  All facilities designed, constructed, or altered by, on behalf of, or for the use of a public entity must be readily accessible or usable by people with disabilities, if the construction or alteration was begun after January 26, 1992. Public entities can use either the Uniform Federal Accessibility Standards (UFAS) or the Americans with Disabilities Act Guidelines for Buildings and Facilities (ADAAG) to meet this requirement. Public entities are not necessarily required to make each of their existing facilities program accessible. Rather, services, programs, and activities, when viewed in their entirety, must be readily accessible to and usable by people with disabilities unless it would result in a fundamental change in the nature of the program or activity, or result in an undue administrative or financial burden. If so, the public entity must take other actions to ensure that people with disabilities have program accessibility, such as moving a program or service to another location.

 

Effective communication

A public entity must ensure that its communications with individuals with disabilities are as effective as communications with others. This obligation, however, does not require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of its services, programs, or activities, or in undue financial and administrative burdens.

Auxiliary Aides and Services

In order to provide equal access, a public entity is required to make available appropriate auxiliary aids and services where necessary to ensure effective communication.  Auxiliary aids and services include a wide range of services and devices that promote effective communication:

For individuals who are deaf or hard of hearing:

  • qualified interpreters 
  • notetakers
  • computer-aided transcription services 
  • written materials 
  • telephone handset amplifiers
  • assistive listening systems 
  • telephones compatible with hearing aids 
  • closed caption decoders 
  • open and closed captioning 
  • telecommunications devices for deaf persons (TDD's)
  • videotext displays
  • exchange of written notes

For individuals with vision impairments:

  • qualified readers 
  • taped texts
  • audio recordings 
  • Brailled materials 
  • large print materials 
  • assistance in locating items

For individuals with speech impairments:

  • TDD's 
  • computer terminals 
  • speech synthesizers 
  • communication boards

Primary consideration: When an auxiliary aid or service is required, the public entity must provide an opportunity for individuals with disabilities to request the auxiliary aids and services of their choice and must give primary consideration to the choice expressed by the individual. "Primary consideration" means that the public entity must honor the choice, unless it can demonstrate that another equally effective means of communication is available, or that use of the means chosen would result in a fundamental alteration in the service, program, or activity or in undue financial and administrative burdens. It is important to consult with the individual to determine the most appropriate auxiliary aid or service, because the individual with a disability is most familiar with his or her disability and is in the best position to determine what type of aid or service will be effective.

The key to deciding what aid or service is needed to communicate effectively is to consider the nature, length, complexity, and context of the communication, as well as the person̥s normal method(s) of communication.

Title II vs. Title III Requirements

Title II places a more stringent requirement upon public entities than Title III places upon public accommodations. Title III does not require the place of public accommodation to consider the preferred method of communication of the person with a disability, but only that the method of communication it offers is effective. Conversely, the state or local government entity is required to honor the person̥s choice, unless it can demonstrate that another equally effective means of communication is available, or that the use of the means chosen would result in a fundamental alteration or in an undue burden. If the choice expressed by the person with a disability would result in an undue burden or a fundamental alteration, the public entity still has an obligation to provide an alternative aid or service that provides effective communication if one is available.

https://www.ada.gov/effective-comm.htm

Telephone communications

Public entities that communicate by telephone must provide equally effective communication to individuals with disabilities, including hearing and speech impairments. If telephone relay services, such as those required by title IV of the ADA, are available, these services generally may be used to meet this requirement. Relay services involve a relay operator who uses both a standard telephone and a TDD to type the voice messages to the TDD user and read the TDD messages to the standard telephone user. Where such services are available, public employees must be instructed to accept and handle relayed calls in the normal course of business.

28 CFR _ 35.160-35.164

Surcharges

Although compliance may result in some additional cost, a public entity may not place a surcharge only on particular individuals with disabilities or groups of individuals with disabilities to cover these expenses.  It is the responsibility of the public entity to pay for any auxiliary aides or services, or accommodations and modifications to services, programs and activities.

For example: A community college provides interpreter services to deaf students, removes a limited number of architectural barriers, and relocates inaccessible courses and activities to more accessible locations. The college cannot place a surcharge on either an individual student with a disability (such as a deaf student who benefited from interpreter services) or on groups of students with disabilities (such as students with mobility impairments who benefited from barrier removal). It may, however, adjust its tuition or fees for all students.

28 CFR _ 35.130-35.135

Personal Services and Devices

A public entity is not required to provide individuals with disabilities with personal or individually prescribed devices, such as wheelchairs, prescription eyeglasses, or hearing aids, or to provide services of a personal nature, such as assistance in eating, toileting, or dressing. 

28 CFR _ 35.135

Public entity: definition and purpose

A public entity is any State or Local Government or Any Department, Agency, Special Purpose District, or Instrumentality of State or Local Government.  All activities, services, and programs of public entities are covered, including activities of state legislatures and courts, town meetings, police and fire departments, motor vehicle licensing, and employment. The Federal government, however, is not considered a public entity. The Federal government is covered by sections 501 and 504 of the Rehabilitation Act of 1973.

28 CFR 35.104

Fundamental alteration or undue burden

A public entity is not required to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity, or in undue financial and administrative burdens. In these circumstances, the public entity has the burden to prove such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or burdens, the public entity must ensure that individuals with disabilities receive the benefits or services provided.  

A public entity is not required to make structural changes in existing facilities when other methods are effective in achieving compliance. Some examples of other methods of access to a public entity's services, programs and activities include:

  • redesign or acquisition of equipment
  • reassignment of services to accessible buildings
  • home visits
  • delivery of services at alternate accessible sites
  • alteration of existing facilities and construction of new facilities

Public transportation

Public transportation services operated by State and local governments are covered by regulations of the Department of Transportation. DOT's regulations establish specific requirements for transportation vehicles and facilities, including a requirement that all new buses must be equipped to provide services to people who use wheelchairs.

https://www.ada.gov/t2hlt95.htm

Reasonable modifications

A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. For example, a person with an intellectual disability may need assistance completing an application for county emergency housing services. It would be a reasonable modification for the county to offer assistance in filling out the paperwork.

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Title II: Administrative requirements for public entities

Title II requires that public entities take several steps designed to achieve compliance.  The ADA Title II Action Guide for State and Local Governments offers a seven-step process to support government entities' efforts to make its services, programs and activities accessible to people with disabilities.  

Step 1: Start Implementation

Each public entity must formulate an approach that best suits itself and the community it serves. There is no one approach to compliance. Most public entities start by appointing an ADA Coordinator and putting together an ADA team.

Step 2: Appoint an ADA Coordinator

If a public entity has 50 or more employees, it is required to designate at least one responsible employee to coordinate ADA compliance.  The ADA Coordinator is the key player in ensuring ADA compliance. The coordinator must have the authority, knowledge, and motivation to implement the regulations effectively.

Potential roles of the ADA Coordinator include:

  • Plan and coordinate compliance efforts
  • Develop and distribute notice about ADA compliance
  • Respond to general inquiries from the public
  • Coordinate requests for auxiliary aids and services and reasonable modifications of policies, practices and procedures
  • Train staff, boards and commissions on ADA requirements
  • Interact and consult with staff, boards and commission on the ADA
  • Develop a grievance procedure
  • Investigate complaints
  • Conduct a self-evaluation
  • Develop a transition plan

Step 3: Provide Public Notice

All public entities must provide information to the public, program participants, program beneficiaries, applicants and employees about the ADA and how it applies to the public entity. Methods may include:

  • Put the notice on the public entity̥s website.
  • Include the notice in social media such as Twitter and Facebook.
  • Post the notice at facilities.
  • Publish the notice in local newspapers.
  • Broadcast the notice in public service announcements on local radio and television stations.
  • Include the notice in program announcements and applications.

The information must be provided in alternative formats so that it is accessible to people with hearing and vision disabilities.

Step 4: Adopt a Grievance Procedure

Public entities with 50 or more employees must have a grievance procedure.

A grievance procedure provides people who believe they have been discriminated against because of their disability, or others who believe they have been discriminated against because they have a friend or family member with a disability, with a formal process to make their complaint known. This procedure encourages prompt and equitable resolution of the problem at the local or state level without forcing people to file a federal complaint or a lawsuit.

Step 5: Conduct a Self-Evaluation

The self-evaluation is a comprehensive review of all programs, activities, and services operated by the public entity.  The self-evaluation was required to be completed by January 26, 1993. Because changes were made to the Title II regulations and the ADA Standards for Accessible Design in 2010, an updated self-evaluation is recommended. The Title II regulations and ADA Standards were changed to include recreation areas from play areas to swimming pools, residential facilities, event ticketing policies, policies concerning other-power-driven mobility devices, miniature horses as service animals and specifications for video-remote-interpreting.  Plus since information technology barely existed when the ADA was passed in 1990, and all state and local governments now have website that need to be accessible to people with disabilities, websites need to be evaluated.

After conducting a self-evaluation, a public entity can develop a transition plan for structural changes and work with the public entity̥s departments and agencies to modify policies and procedures.

Step 6: Develop a Transition Plan

The transition plan is developed from the self-evaluation and facilities survey. Many public entities are reassessing their facilities to determine if the original transition plan was followed and whether additional access improvements are needed.

Another reason to update or create a new transition plan is that the current (2010) ADA Standards for Accessible Design include accessibility requirements for recreation areas such as swimming pools, fishing piers, golf courses, play areas, recreational boating areas, exercise equipment rooms, team seating and locker rooms.  The Standards also specify accessible routes to and between sports fields, for example baseball, soccer and football fields.

To assure equal opportunity and program accessibility, these recreation activities need to be surveyed using the current ADA Standards and many of the recreation areas will need to be updated in accordance with the ADA Standards.

A transition plan consists of:

  1. A list of the physical barriers that limit the accessibility of programs, activities, or services
  2. The methods to remove the barriers and make the facilities accessible
  3. The schedule to get the work completed
  4. The name of the official(s) responsible for the plan's implementation

Step 7: Create an Action Plan

After a self-evaluation there are many actions that need to be taken that don̥t include structural changes to buildings.  For example, the public entity's website might need to be reviewed for accessibility, policies might need to change, and meetings might need to be moved.  The Title II regulations don̥t include a planning process for these non-structural tasks. 

The transition plan addresses all things structural, but there̥s no formal planning mechanism to make sure the non-structural changes are made.  It is recommended that public entities develop action plans to address these non-structural issues.

Ready to take action?

To view the complete ADA Title II Action Guide for State and Local Governments, including self-evaluation forms and other sample documents, check out the detailed Action Guide at http://www.adaactionguide.org/. 

Investigation of complaints and enforcement

The following information is from the Title II Technical Assistance Manual developed by the U.S. Department of Justice. The manual provides guidance on the regulations under Title II of the ADA.

Individuals wishing to file title II complaints may either file:

  1. An administrative complaint with an appropriate Federal agency; or
  2. A lawsuit in Federal district court

If an individual files an administrative complaint, an appropriate Federal agency will investigate the allegations of discrimination. Should the agency conclude that the public entity violated title II, it will attempt to negotiate a settlement with the public entity to remedy the violations. If settlement efforts fail, the matter will be referred to the Department of Justice for a decision whether to institute litigation.

Complaints

A person or a specific class of individuals or their representative may file a complaint alleging discrimination on the basis of disability.

What must be included in a complaint?

  1. A complaint must be in writing.
  2. It should contain the name and address of the individual or the representative filing the complaint.
  3. The complaint should describe the public entity's alleged discriminatory action in sufficient detail to inform the Federal agency of the nature and date of the alleged violation.
  4. The complaint must be signed by the complainant or by someone authorized to do so on his or her behalf.
  5. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discrimination.

Is there a time period in which a complaint must be filed?

Yes. A complaint must be filed within 180 days of the date of the alleged act(s) of discrimination, unless the time for filing is extended by the Federal agency for good cause. As long as the complaint is filed with any Federal agency, the 180-day requirement will be considered satisfied.

Where should a complaint be filed?

A complaint may be filed with either:

  1. Any Federal agency that provides funding to the public entity that is the subject of the complaint
  2. A Federal agency designated in the title II regulation to investigate title II complaints; or
  3. The Department of Justice.

For further information on filing an ADA complaint, please see the ADA Title II Technical Assistance Manual.

To file an ADA complaint with the U.S. Department of Justice, please see the U.S. Department of Justice brief How to File an ADA Complaint with the U.S. Department of Justice.

28 CFR 35.170-35.190

References

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Email Us: northeastada@cornell.edu