ADA Compliance Process by Evan Terry Associates

Note: This document or portion of document is from the www.evanterry.com archives and may not reflect the most current information, practices or code references. This is in the process of being updated and will soon be available in addition to the archived original.

ADA Compliance Process

Evan Terry Associates, P.C. concentrates a significant portion of its resources to the study and application of the facilities and program access requirements of the Americans with Disabilities Act. We are pleased to pass along the following ADA Compliance Process to you.

◼ A Guide to Understanding the Americans with Disabilities Act - Definitions, Outline (11/00)

[Click here to view or download the PDF version of "A Guide to Understanding the Americans with Disabilities Act - Definitions, Outline" (20 KB PDF)]

DEFINITIONS

Disability – (a) A physical or mental impairment that substantially limits one or more of the major life activities of an individual; (b) A record of such impairment; or (c) Being regarded as having an impairment.

Facility – all or any portion of buildings, structures, sites, complexes, rolling stock or other conveyances, equipment, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure or equipment is located. Includes both indoor and outdoor areas where human-constructed improvements, structures, equipment or property has been added to the natural environment. Includes temporary facilities, excluding construction sites.

Place of Public Accommodation – a facility operated by a private entity falling within at least one of these 12 categories: (a) an inn, hotel, motel, or other place of lodging except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor; (b) a restaurant, bar or other establishment serving food or drink; (c) a motion picture house, theater, concert hall, stadium or other place of exhibition or entertainment; (d) an auditorium, convention center, lecture hall or other place of public gathering; (e) a bakery, grocery store, clothing store, hardware store, shopping center or other sales or rental establishment; (f) a Laundromat, dry cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a healthcare provider, hospital, or other service establishment; (g) a terminal depot or other station used for specified public transportation; (h) a museum, library, gallery, or other place of public display or collection; (i) a park, zoo, amusement park or other place of recreation; (j) a nursery, elementary, secondary, undergraduate, or post graduate private school or other place of education; (k) a day care center, senior citizen's center, homeless shelter, food bank, adoption agency or other social service center establishment; (l) a gymnasium, health spa, bowling alley, golf course or other place of exercise or recreation.

Commercial Facilities – facilities that are intended for non-residential use by a private entity whose operations will affect commerce.

Readily Achievable – the limitation on a public accommodation for the removal of architectural and communication barriers. It means easily accomplishable and able to be carried out without much difficulty or expense. What is readily achievable for a large, profitable company may not be readily achievable for an economically marginal company.

Undue Burden – means significant difficulty or expense and along with "fundamental alteration" establishes the limitation on a public accommodation with regard to the provision of auxiliary aids and services so as not to discriminate against persons with disabilities.

Public Entity – (A) any State or local government; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government, and (C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act).

OUTLINE OF ADA

Title I ADA Employment Section

Title II ADA Public Services and Public Transportation Section

Title III ADA Public Accommodations and Services Section

Title IV ADA Telecommunications Section

Title V ADA Miscellaneous Provisions

ABBREVIATIONS

ABA Architectural Barriers Act of 1968

ADA Americans with Disabilities Act of 1990

ADAAG ADA Accessibility Guidelines for Buildings and Facilities - Appendix "A" to DOJ Regulation on Title III - (Fed. Reg. 7-26-91) plus revisions to date

ANSI A117.1 American National Standard for Buildings and Facilities - Providing Accessibility and Usability for Physically Handicapped People - 1980, 86, 92

ATBCB Architectural and Transportation Barriers Compliance Board

CABO Council for American Building Officials

CDC Center for Disease Control

DOJ Department of Justice

DOT Department of Transportation

EEOC Equal Employment Opportunity Commission

FCC Federal Communications Commission

FHAA Fair Housing Amendments Act - 1988

MGRAD Minimum Guidelines and Regulations for Accessible Design (36 CFR part 1190)

Rehab Act Rehabilitation Act of 1973 (especially Section 504)

UFAS Uniform Federal Accessibility Standards - 1988

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_{Evan Terry Associates, P.C. • One Perimeter Park So, Suite 200S • Birmingham AL 35243}

_{• Phone 205/9729100 • TTY 205/9729112 • Fax 205/9729110}

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◼ ADA Task Force Meeting Topics (Public Entity) (12/00)

[Click here to view or download the PDF version of "ADA Task Force Meeting Topics" (12 KB PDF)]

Role of ADA Compliance Coordinator

Maintain Accountability within Task Force for Completion of Assigned Tasks
Coordination with Disability Community Representatives
Coordinate Responses to Specific Questions
Contact with Federal Authorities
- Technical Assistance
- Complaints
Response to grievances, complaints and plaintiffs
Maintain Updated Library of ADA Standards
Other

Role of ADA Task Force Members

Determine Philosophical Basis for Compliance Decisions
- Motivators
- Financial Perspective
Process for Responding to Specific Needs
- Requests
- Grievances
- Complaints
- Lawsuits
- Media Requests
"Adopt-a-Disability" Exercise for all Task Force Members
Other

Compliance Responsibilities (Abbreviated List)

Self-Evaluation of Programs, Policies, Procedures and Practices
Ongoing Review of ADA Communications Requirements
- Notification of Interested Parties about ADA Coverage
- Develop Complaint Procedures
- Review Telephones, TDD's, Security Phones, etc. for Compliance
- Develop Notification Procedures for Additional Auxiliary Aids and/or Services
- Verify Individuals with Disabilities can Obtain Info. about Accessible Programs
Review Entities Receiving Contracts or "Significant Assistance"
Review Policies for Licenses and Appointments
Review Procurement Criteria and Procedures
Survey of Facility Barriers
Review Streets and Walkways under Control of Entity
Transition Plan
Barrier Removal
- Physical
- Administrative
Periodic Review of Maintenance and Repair Policies
Verify New Construction and Alteration Projects' Compliance (Continuing Process)

__________________________________________________________________________________________

_{Evan Terry Associates, P.C. • One Perimeter Park So, Suite 200S • Birmingham AL 35243}

_{• Phone 205/9729100 • TTY 205/9729112 • Fax 205/9729110}

_{www.evanterry.com • email: eta@evanterry.com}

◼ An Overview of the Basic ADA Facility Requirements for Public Accommodations and Commercial Facilities

[Click here to view or download the PDF version of "An Overview of the Basic ADA Facility Requirements" (12 KB PDF)]

The ADA was signed into law on July 26, 1990 and became effective over a series of dates, the last of which, for private entities, was January 26, 1993. The key dates that apply to most facilities are as follows:

New Construction¹ first occupied after January 26, 1993 was required to meet the full ADA Standards unless the plans were completed and submitted for permitting before January 26, 1992;
Alterations physically started after January 26, 1992 were required to comply with the ADA Standards to the Maximum Extent Feasible, and
- When an Alteration might affect the usability of a Primary Function Area, then additional Path of Travel barrier removal might also be required;
Existing Places of Public Accommodation were required to remove Barriers to People with Disabilities where it was Readily Achievable to do so by January 26, 1992 and subsequently as conditions changed to make it Readily Achievable preferably reassessing it annually; (Note that Commercial Facilities are not required to remove barriers under the Readily Achievable requirement of the ADA);
When physical removal of a barrier is determined not to be Readily Achievable, then the Public Accommodation must make their goods and services available to people with disabilities using alternate methods when that is Readily Achievable;
Finally, private entities with more than 15 employees are required to make Reasonable Accommodations to allow their employees with disabilities to perform the essential functions of their jobs and to make it possible for them to enjoy an equal employment opportunity²

* * * * * * *

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1 All Italicized and capitalized words are defined in "ADA Facility Definitions".

2 The full requirements for Reasonable Accommodations under Title I of the ADA are too broad to be covered in this document. This reference is primarily to note that some Reasonable Accommodations that may exceed the simple requirements of the ADA Standards must be made in certain circumstances to allow prospective employees to have access to the employment process.

__________________________________________________________________________________________

_{Evan Terry Associates, P.C. • One Perimeter Park So, Suite 200S • Birmingham AL 35243}

_{• Phone 205/9729100 • TTY 205/9729112 • Fax 205/9729110}

_{www.evanterry.com • email: eta@evanterry.com}

◼ ADA Facility Definitions (for Private Entities) (1995)

[Click here to view or download the PDF version of "ADA Facility Definitions" (40 KB PDF)]

Accessible Route.

A continuous unobstructed path connecting all accessible elements and spaces of a building or facility. Interior accessible routes may include corridors, floors, ramps, elevators, lifts, and clear floor space at fixtures. Exterior accessible routes may include parking access aisles, curb ramps, crosswalks at vehicular ways, walks, ramps, and lifts.

- Source: Definition from The ADA Standards at § 3.5.

Act - Public Law 101-336 - This Act may be cited as the "Americans with Disabilities Act of 1990".

- Source: Definition from ADA Public Law 101- 336

ADA Regulations - Title III - Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities (28 CFR Part 36)

- Source: Definition from ADA Title III Regulations

ADA Standards - Appendix A to 28 CFR Part 36 (the ADA Regulations issued by DOJ), it is sometimes called the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG). ADAAG was the original document written by the US ATCBC (the Access Board) as guidance to the Department of Justice who, in July of 1991, adopted it to become the ADA Standards.

- Source: Definition from The ADA Standards at § 3.5.

Alteration.

An alteration is a change to a building or facility made by, on behalf of or for the use of a public accommodation or commercial facility, that affects or could affect the usability of the building or facility or part thereof Alterations include, but are not limited to, remodeling renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement of the structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, re-roofing, painting or wallpapering, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.

- Source: Definition from The ADA Standards at § 3.5.

§36.403(c) Alterations To An Area Containing A Primary Function.

§36.403(c)(1) Alterations that affect the usability of or access to an area containing a primary function include, but are not limited to –

§36.403(c)(1)(i) Remodeling merchandise display areas or employee work areas in a department store;

§36.403(c)(1)(ii) Replacing an inaccessible floor surface in the customer service or employee work areas of a bank;

§36.403(c)(1)(iii) Redesigning the assembly line area of a factory; or

§36.403(c)(1)(iv) Installing a computer center in an accounting firm.

§36.403(c)(2) For the purposes of this section, alterations to windows, hardware, controls, electrical outlets, and signage shall not be deemed to be alterations that affect the usability of or access to an area containing a primary function.

(From the Preamble to Title III regulations section related to 36.402): Normal maintenance, re-roofing painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of building or facility.

- Source: Definition from ADA Title III Regulations

Barriers to People with Disabilities - characteristics of spaces, elements, or services covered under the ADA Regulations or ADA Standards for New Construction that do not comply with those Standards. Not all barriers are required to be removed by the Act or by the ADA Regulations.

Commercial Facilities means facilities --

(1) Whose operations will affect commerce;

(2) That are intended for nonresidential use by a private entity; and

(3) That are not –

(i) Facilities that are covered or expressly exempted from coverage under the Fair Housing Act of 1968, as amended (42-USC-3601 – 42-USC-3631);

(ii) Aircraft; or

(iii) Railroad locomotives, railroad freight cars, railroad cabooses, commuter or inter-city passenger rail cars (including coaches, dining cars, sleeping cars, lounge cars, and food service cars), any other railroad cars described in section 242 of the Act or covered under title II of the Act, or railroad rights-of-way. For purposes of this definition, "rail" and "railroad" have the meaning given the term "railroad" in section 202(e) of the Federal Railroad Safety Act of1970 (45-USC-431(e)).

- Source: Definition from ADA Title III Regulations

Facility means all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.

- Source: Definition from ADA Title III Regulations

All or any portion of buildings, structures, site improvements, complexes, equipment, roads, walks, passageways, parking lots, or other real or personal properly located on a site.

- Source: Definition from The ADA Standards at § 3.5.

to the Maximum Extent Feasible §36.402(c) The phrase "to the maximum extent feasible, " as used in this section, applies to the occasional case where the nature of an existing facility makes it virtually impossible to comply fully with applicable accessibility standards through a planned alteration. In these circumstances, the alteration shall provide the maximum physical accessibility feasible. Any altered features of the facility that can be made accessible shall be made accessible. If providing accessibility in conformance with this section to individuals with certain disabilities (e.g., those who use wheelchairs) would not be feasible, the facility shall be made accessible to persons with other types of disabilities (e.g., those who use crutches, those who have impaired vision or hearing, or those who have other impairments).

- Source: Definition from ADA Title III Regulations

The Senate Report provides guidance on what the phrase "maximum extent feasible" means –

The phrase "to the maximum extent feasible" has been included to allow for the occasional case in

which the nature of an existing facility is such as to make it virtually impossible to renovate the building in a manner that results in its being entirely accessible to and usable by individuals with disabilities. In all such cases, however, the alteration should provide the maximum amount of physical accessibility feasible.

Thus, for example the term "to the maximum extent feasible" should be construed as not requiring entities to make building alterations that have little likelihood of being accomplished without removing or altering a load-bearing structural member unless the load-bearing structural member is otherwise being removed or altered as part of the alteration. (S. Rept. 101-116, at 68)

- Source: Definition from Senate Report 101-116

New Construction – facilities constructed for first occupancy after January 26, 1993 where the construction documents were submitted for permitting after January 26, 1992.

Subpart D – New Construction And Alterations §36.401

§36.401(a) GENERAL.

§36.401(a)(1) Except as provided in paragraphs §36.401(b) and §36.401(c) of this section, discrimination for purposes of this part includes a failure to design and construct facilities for first occupancy after January 26, 1993, that are readily accessible to and usable by individuals with disabilities.

§36.401(a)(2) For purposes of this section, a facility is designed and constructed for first occupancy after January 26, 1993, only –

§36.401(a)(2)(i) If the last application for a building permit or permit extension for the facility is certified to be complete, by a State, County, or local government after January 26, 1992 (or in those jurisdictions where the government does not certify completion of applications, if the last application for a building permit or permit extension for the facility is received by the State, County, or local government after January 26, 1992); and

§36.401(a)(2)(ii) If the first certificate of occupancy for the facility is issued after January 26, 1993.

- Source: Definition from ADA Title III Regulations

Path of Travel.

§36.403(e)(1) A "path of travel" includes a continuous, unobstructed way of pedestrian passage by means of which the altered area may be approached, entered, and exited, and which connects the altered area with an exterior approach (including sidewalks, streets, and parking areas), an entrance to the facility, and other parts of the facility.

§36.403(e)(2) An accessible path of travel may consist of walks and sidewalks, curb ramps and other interior or exterior pedestrian ramps; clear floor paths through lobbies, corridors, rooms, and other improved areas; parking access aisles; elevators and lifts; or a combination of these elements.

§36.403(e)(3) For the purposes of this part, the term "path of travel" also includes the restrooms, telephones, and drinking fountains serving the altered area.

Primary Function.

§36.403(b) A "primary function" is a major activity for which the facility is intended. Areas that contain a primary function include, but are not limited to, the customer services lobby of a bank, the dining area of a cafeteria, the meeting rooms in a conference center, as well as offices and other work areas in which the activities of the public accommodation or other private entity using the facility are carried out. Mechanical rooms, boiler rooms, supply storage rooms, employee lounges or locker rooms, janitorial closets, entrances, corridors, and restrooms are not areas containing a primary function.

- Source: Definition from ADA Title III Regulations

Alterations To An Area Containing A Primary Function: 4.1.6(2) In addition to the requirements of 4.1.6(1), an alteration that affects or could affect the usability of or access to an area containing a primary function shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area and the restrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities, unless such alterations are disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General). Costs exceeding 20% of the cost of the alteration are considered disproportionate.

- Source: Definition from The ADA Standards at § 3.5.

Place Of Public Accommodation means a facility, operated by a private entity, whose operations affect commerce and fall within at least one of the following categories --

(1) An inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of the proprietor;

(2) A restaurant, bar, or other establishment serving food or drink;

(3) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(4) An auditorium, convention center, lecture hall, or other place of public gathering;

(5) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

(6) A Laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

(7) A terminal, depot, or other station used for specified public transportation;

(8) A museum, library, gallery, or other place of public display or collection;

(9) A park, zoo, amusement park, or other place of recreation;

(10) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

(11) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

(12) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

- Source: Definition from ADA Title III Regulations

Public Accommodation means a private entity that owns, leases (or leases to), or operates a place of public accommodation.

- Source: Definition from ADA Title III Regulations

Readily Achievable means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable factors to be considered include –

(1) The nature and cost of the action needed under this part;

(2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;

(3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;

(4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and

(5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity. (See also attached "What Contributes to the Determination of Readily Achievable".)

- Source: Definition from ADA Title III Regulations

Reasonable Accommodation §TM-J-3.1 OVERVIEW OF LEGAL OBLIGATIONS

An employer must provide a reasonable accommodation to the known physical or mental limitations of a qualified applicant or employee with a disability unless it can show that the accommodation would impose an undue hardship on the business.
Reasonable accommodation is any modification or adjustment to a job, an employment practice, or the work environment that makes it possible for an individual with a disability to enjoy an equal employment opportunity.
The obligation to provide a reasonable accommodation applies to all aspects of employment. This duty is ongoing and may arise any time that a person’s disability or job changes.
An employer cannot deny an employment opportunity to a qualified applicant or employee because of the need to provide reasonable accommodation, unless it would cause an undue hardship...
... If the cost of an accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of providing the accommodation or paying that portion of the cost which would constitute an undue hardship.

- Source: Definition from EEOC’s Title I Technical Assistance Manual

__________________________________________________________________________________________

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◼ Overview of Title II Requirements (1995)

[Click here to view or download the PDF version of "Overview of Title II Requirements" (52 KB PDF)]

APPLICATION {35.102}

All, Services Programs and Activities
Provided or made available by public entities

SELF-EVALUATION {35.105}

By January 26, 1993
Services, policies, practices and effects thereof
Public participation and comment
If 50 + employees, keep on file 3 years with updates

NOTICE {35.106}

Notify interested parties of:
- Provisions of ADA
- Application to services, programs and activities
- Protections against discrimination given by ADA
- Communicate according to {35.160}

DESIGNATED, RESPONSIBLE EMPLOYEE {35.107}

Required if 50+ employees
- Responsibilities:
  - Coordinate efforts
  - Investigate complaints alleging noncompliance

COMPLAINT PROCEDURES {35.107}

Required if 50+ employees
Adopt and publish grievance procedures for prompt and equitable resolution of complaints

GENERAL PROHIBITION AGAINST DISCRIMINATION {35.130}

“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.”

Directly, or
Through contracts, licensing or other arrangements
- Deny participation, aid, benefit or service
- Equal to that afforded others
- As effective as afforded others
Provide different or separate aids, benefits or services unless:

DIFFERENT OR SEPARATE PROHIBITED {35.130}

Unless necessary to provide aids, benefits, or services as effective as provided to others
When individuals are not allowed to participate in non-separate programs, services or activities

ADDITIONAL PROHIBITIONS {35.130}

Provide significant assistance to an agency, organization, or person that discriminates
Deny participation on planning or advisory boards
Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.

ADDITIONAL PROHIBITIONS {35.130}

Directly or through contracts or other arrangements
Utilize criteria or methods of administration:
- That have the effect of discrimination
- That have the purpose or effect of defeating or substantially impairing programs
- That perpetuate the discrimination of another public entity subject to common control

ADDITIONAL PROHIBITIONS {35.130}

In determining facility sites, make selections
- That have the effect of excluding, denying benefits or otherwise discriminating
- That have the purpose or effect of defeating or substantially impairing programs

ADDITIONAL PROHIBITIONS {35.130}

In procurement, use criteria that discriminate
Administer a licensing or certification program
- That discriminates
- That establishes requirements that discriminate
Impose or apply eligibility criteria that screen out or tend to screen out unless such criteria are necessary for provision of the program

FUNDAMENTALLY ALTER THE NATURE OF… {35.130}

“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.”

NOT REQUIRED OR PROHIBITED {35.130}

Provision of additional benefits, programs or services beyond those required by ADA

INTEGRATED SETTING {35.130}

“A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.”

FORCED ACCEPTANCE {35.130}

“Nothing in this part shall be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit provided under the ADA or this part which such individual chooses not to accept.”

WITHHOLDING OF TREATMENT NOT AUTHORIZED {35.130}

“Nothing in the Act or this part authorizes the representative or guardian of an individual with a disability to decline food, water, medical treatment, or medical services for that individual.”

SURCHAGES FOR REQUIRED PROVISIONS {35.130}

Surcharges on particular individuals with disabilities to cover costs of measures required by the ADA are not allowed.

ASSOCIATION (ROOMMATE) CLAUSE {35.130}

“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 with whom the individual or entity is known to have a relationship or association.”

ILLEGAL USE OF DRUGS {35.131}

Current use not protected
Protections extended to past users who:
- Have successfully completed rehabilitation or
- Are currently in rehabilitation or
- Are erroneously regarded as illegal drug users

DRUG REHABILITATION {35.131}

Cannot be denied due to current drug use unless use continues during rehabilitation program
Reasonable policies allowed {incl. drug testing} to ensure no current use by former users
Drug testing not encouraged, prohibited, restricted, or authorized by ADA

SMOKING {35.132}

Restrictions on smoking in transportation not prohibited or imposed by ADA

MAINTENANCE OF ACCESSIBLE FEATURES {35.133}

Features of facilities and equipment required to be “readily accessible to and usable by” must be maintained in operable working order Isolated and temporary interruptions in service or access due to maintenance or repairs are allowed

RETALIATION OR COERCION {35.134}

Discrimination not allowed against individuals who make a charge, testify, assist or participate in an investigation, proceeding, or ADA hearing
Coercion, intimidation, threats, and interference not allowed
Prohibitions apply to public and private entities

PERSONAL DEVICES AND SERVICES {35.135}

Types not required to be provided by public entity:
- Wheelchairs
- Individually prescribed devices, such as:
  - Prescription eyeglasses or hearing aids
- Readers for personal use or study
- Services of a personal nature including:
  - assistance in eating, toileting, or dressing

PROGRAM ACCESSIBILITY {Subpart D}

“Except as otherwise provided for in (existing facilities), no qualified individual with a disability shall, because a public entity’s facilities are inaccessible to or unusable by individuals with disabilities, 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.”

This paragraph does not (necessarily) require:

Making every existing facility accessible
Any action that would threaten or destroy the historic significance of historic property

NOT REQUIRED {35.150}

Any action that would fundamentally alter the nature of a service, program or activity Result in undue financial and administrative burdens

FUNDAMENTAL ALTERATIONS AND UNDUE BURDENS {35.150}

Public entity has burden of proof for relief
Decision must be made by head of the public entity after considering all resources available for use in the funding and operation of the program
Must issue a written statement of reasons
Must take other actions to make program available

METHODS OF COMPLIANCE IN EXISTING FACILITIES {35.150}

Redesign equipment
Reassign services to accessible buildings
Assign aides to beneficiaries or home visits
Delivery of services at alternate, accessible sites
Alteration of existing facilities
Construction of new, accessible facilities
Use accessible rolling stock or other conveyances
Other methods to achieve “readily accessible”

ADDITIONAL NOTES FOR EXISTING FACILITIES {35.150}

No requirement to make structural changes where other methods are effective in achieving compliance
Alterations to existing buildings must meet requirements for alterations in {35.151}
Selection of compliance methods should give priority to methods that offer the most integrated setting appropriate

HISTORIC PRESERVATION PROGRAMS {35.150}

Priority shall be given to methods that provide physical access to individuals with disabilities
When alterations would threaten the historic significance, fundamentally alter the nature of the program or result undue burdens, alternative methods of achieving program accessibility might include:

ALTERNATIVE METHODS FOR HISTORIC PRESERVATION PROGRAMS {35.150}

Using audio-visual materials and devices to depict inaccessible portions of historic property
Assigning persons to guide individuals with disabilities through inaccessible areas
Adopting other innovative methods

DEADLINES FOR STRUCTURAL CHANGES {35.150}

Where structural changes are required:
- As expeditiously as possible
- Completed no later than January 26, 1995
- Following the “Transition Plan”, if applicable

TRANSITION PLAN {35.150}

Required where:
- Structural changes will be undertaken to achieve program access
- Public entity employs 50 or more persons

TRANSITION PLAN INCLUDE {35.150}

Steps necessary to complete changes to facilities
Public inspection, comments and participation
Identification of physical obstacles in facilities that limit access
Detailed methods that will be used to make facilities accessible
Schedule for taking steps required for compliance
Name of official responsible for implementation

STREETS, ROADS AND WALKWAYS {35.150}

“If a public entity has responsibility or authority over streets, roads, or walkways, its transition plan shall include a schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs, giving priority to walkways serving entities covered by the Act, including State and local government offices and facilities, transportation, places of public accommodation, and employers, followed by walkways serving other areas.”

COORDINATION WITH SECTION 504 TRANSITION PLAN {35.150}

New transition plans required only for policies and practices not included in previous transitions plans developed under section 504 of the Rehab Act of 1973

NEW CONSTRUCTION {35.151}

“Each facility or part of a facility constructed by, on behalf of, or for the use of a public entity shall be designed and constructed in such manner that the facility or part of the facility is readily accessible to and usable by individuals with disabilities, if the construction was commenced after January 26, 1992.” (If the date that bids are invited is after January 26, 1992.)

NEW CONSTRUCTION AND ALTERATIONS {35.151}

New Construction
- Shall be designed and constructed to be readily accessible to and usable by individuals with disabilities when bids are invited after 1-26-92
Alterations
- Shall be altered to the maximum extent feasible to be “readily accessible to and usable by” when bids are invited after 1-26-92

ALTERATIONS {35.151}

“Each facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities, if the alteration was commenced after January 26, 1992.”

ACCESSIBILITY STANDARDS {35.151}

Public entities may choose either:
- Uniform Federal Accessibility Standards (UFAS) or
- Americans with Disabilities Act Accessibility
- Guidelines for Buildings and Facilities (ADAAG) {Not including the elevator exemption}
Departures from the standards are allowed when clearly equivalent access is provided

COMMUNICATIONS {Subpart E}

“A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.”

COMMUNICATIONS {Subpart E}

“A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.”

COMMUNICATIONS {Subpart E}

“In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.”

TELECOMMUNICATION DEVICES FOR THE DEAF (TDD’S) {35.161}

“Where a public entity communicates by telephone with applicants and beneficiaries, TDD’s or equally effective telecommunication systems shall be used to communicate with individuals with impaired hearing or speech.”

TELEPHONE EMERGENCY SERVICES {35.162}

“Telephone emergency services, including 911 services, shall provide direct access to individuals who use TDD’s and computer modems.”

INFORMATION AND SIGNAGE {35.163}

“A public entity shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.”

INFORMATION AND SIGNAGE {35.163}

“A public entity shall provide signage at all inaccessible entrances to each of its facilities, directing users to an accessible entrance or to a location at which they can obtain information about accessible facilities.”

ATTORNEY’S FEES {35.175}

“In any action or administrative proceeding commenced pursuant to the Act or this part, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual.”

ALTERNATIVE MEANS OF DISPUTE RESOLUTION {35.176}

Encouraged to resolve disputes under the Act
- Settlement negotiations
- Conciliation
- Facilitation
- Mediation
- Fact-finding
- Mini-trials and
- Arbitration

STATE IMMUNITY {35.178}

“A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this Act.”

__________________________________________________________________________________________

_{• Phone 205/9729100 • TTY 205/9729112 • Fax 205/9729110}

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◼ ADA Title II: Public Entity Facilities Compliance Timetable and Fact Sheet (11/00)

[Click here to view or download the PDF version of "ADA Title II: Public Entity Facilities Compliance Timetable and Fact Sheet" (24 KB PDF)]

Title II Public Entity Facilities Compliance Timetable

7-26-1990 Signing of the Americans with Disabilities Act of 1990 by President George Bush.

2-28-1991 Draft Regulations issued by the Department of Justice for implementing Title II.

4-29-1991 Final comments on draft regulations due at DOJ.

7-26-1991 Final regulations for implementing Title II published by the Department of Justice.

1-26-1992 Effective Date of Title II.

1.) Ensure that the operation of each service, program and activity is operating so that each, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. (35.150(a))

Even though the following required procedures will not shield a public entity from a discrimination complaint, they are mandatory if programs are not readily accessible to and usable by people with disabilities:

A. Begin self-evaluation process for those areas of services, policies and practices not previously evaluated (and on file) for section 504 of the Rehabilitation Act of 1973. (35.105)

B. Begin transition plan outlining structural changes required for program accessibility and proceed with structural changes, as required, to facilities "as expeditiously as possible". (35.150(c))

2.) New construction advertised for bid after this date must be readily accessible. (35.151(a))

3.) The altered portions of alterations advertised for bid after this date must, to the maximum extent feasible, meet the "readily accessible to and usable by individuals with disabilities" standard set by the Uniform Federal Accessibility Standard or, at the public entity's option, the ADAAG. (35.151(b)).

4.) Date a complaint or civil law suit may be filed by an individual based on ADA discrimination by a public entity.

7-26-1992 Transition plan complete where structural changes to facilities will be undertaken to provide program access. Transition plan must identify obstacles, describe in detail the methods that will be used to make facilities accessible, specify the schedule for taking the steps identified and indicate the official responsible for implementation of the plan. (35.150(d))

1-26-1993 Self-evaluation complete. (35.150(a))

1-26-1995 Completion of last structural changes to facilities where such changes were undertaken for program accessibility. (35.150(c))

This is not legal advice. A competent lawyer should be consulted regarding any specific legal questions. Information presented above was taken from DOJ Regulation (28 CFR Part 35) on Title II of ADA.

Title II Public Entity Facilities Compliance Fact Sheet

General Rule:

No qualified individual with a disability shall be discriminated against or excluded from participation in or the benefits of the services, programs, or activities of a public entity.

Program Accessibility:

No qualified individual with a disability shall, because of inaccessible or unusable facilities of a public entity, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity or be subject to discrimination by any public entity.

Limitations:

It is not required that a public entity take any action that it can demonstrate would constitute a fundamental alteration in the nature of the service, program or activity, or would cause an undue administrative or financial burden. Regardless of that, a public entity is required to take any other action that would not trigger this limitation and ensure program accessibility.

Existing Facilities:

A public entity is required to make structural changes to existing facilities only when program accessibility is not feasible any other way (i.e.: reassignment of services to accessible building, or provision of auxiliary aids.)

Although unable to protect a public entity from complaint or civil suit if programs were not readily accessible to and usable by persons with disabilities by Jan. 26, 1992, each public entity in the U.S. is required to complete a "self-evaluation" of its current policies and practices to identify any non-compliant policies or practices.

Where "structural changes" to existing facilities are the only way to arrive at program accessibility, a "transition plan" (only required for public entities with 50 employees or more) outlining the steps necessary to complete the structural changes is required. Comments must be invited from disabled persons or organizations representing such individuals. The "transition plan" must have been completed by July 26, 1992 and must include the identification of barriers (architectural and communication) to program accessibility, detailed methods for making the facilities accessible, a schedule for implementation and the official responsible for implementation.

New Construction:

All new facilities constructed by, on behalf of or for the use of a public entity shall be designed and constructed to be readily accessible to and usable by persons with disabilities if construction was started or if the invitation for bids went out after Jan. 26, 1992. The elevator exemption contained at section 4.1.3(5) and section 4.1.6(1)(j) of ADAAG shall not apply to facilities constructed by, on behalf of, or for the use of a public entity or entities.

Alterations:

Alterations to facilities of a public entity must also meet the "readily accessible" standard, to the maximum extent feasible. Path of travel requirements also apply.

Effective Date:

The effective date of this Title was Jan. 26, 1992.

Regulation and Standards:

The Department of Justice issued regulations on July 26, 1991 for all portions of Title II except those portions dealing with Public Transportation which were issued by the Department of Transportation.

The regulations associated with Title II of the Act and printed in the Federal Register on July 26, 1991 state that compliance with the Uniform Federal Accessibility Standards (UFAS) of the ADAAG (without the elevator exemption) shall satisfy the accessibility requirements of this Title for new and altered buildings and facilities. This publication also states that "departures from particular requirements of those standards by use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided."

Most facilities constructed or altered with Federal funds are presently required to comply with UFAS under the Architectural Barriers Act of 1968. Facilities constructed or altered by recipients of Federal financial assistance are presently required to comply with UFAS under Section 504 of the Rehabilitation Act of 1973.

Enforcement:

Those who believe themselves discriminated against may file a civil lawsuit in Federal District Court. Individuals may file complaints with the designated Federal agencies concerning matters of Title II discrimination or contact the Department of Justice who will direct the complaints as required. The Federal agency specified in the regulations will then investigate the complaint (if made within 180 days of the alleged discrimination), attempt to resolve complaints on a voluntary compliance basis and then, if unsuccessful, refer case to the Department of Justice for civil suit.

Remedies are the same as available under Section 505 of the Rehabilitation Act of 1973. Courts may order an entity to make facilities accessible, provide auxiliary aids or services, modify policies, and pay attorney's fees and expenses.

Notes: Unless stated otherwise, information presented above was taken from Title II regulations published by the DOJ in the Federal Register July 26, 1991.

This is not legal advice. A competent lawyer should be consulted regarding any specific legal questions.

__________________________________________________________________________________________

_{Evan Terry Associates, P.C. • One Perimeter Park So, Suite 200S • Birmingham AL 35243}

_{• Phone 205/9729100 • TTY 205/9729112 • Fax 205/9729110}

_{www.evanterry.com • email: eta@evanterry.com}

◼ ADA Title III: Public Accommodations and Commercial Facilities Fact Sheet (11/00)

[Click here to view or download the PDF version of "ADA Title III: Public Accommodations and Commercial Facilities Fact Sheet" (20 KB PDF)]

Purpose of the Act:

Address the concerns of the 43 million Americans that have one of more physical or mental disabilities and are faced each day with architectural / transportation barriers, overprotective rules and policies, international exclusion and relegation to lesser services, programs, activities, benefits, jobs and other opportunities.

General Rule:

No individuals shall be discriminated against on the basis of disabilities in the full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations at any place of public accommodation by any person who owns, leases, or operates a place of public accommodation.

Benefits provided for people with disabilities cannot be separate or different from those provided for others, unless they are as effective as those provided for others.

It is discriminatory to exclude an individual who has a relationship or association with one who is disabled from the equal enjoyment of goods, services, facilities, privileges, advantages or accommodations or other opportunities afforded other individuals.

Existing Facilities:

Architectural and communication barriers that are structural in nature in existing facilities had to be removed on or before Jan. 26, 1992 where such removal is readily achievable. If these were not all readily achievable then alternate methods must be provided, until they are readily achievable.

Auxiliary aids and services must be offered to those with disabilities to ensure that they are not excluded, denied services, segregated or otherwise treated differently from others, unless it can be shown that taking such steps would alter the fundamental nature of the benefit or would result in an undue burden.

New Construction:

All new construction must be readily accessible to and usable by individuals with disabilities if the first occupancy was after January 26, 1993 and the last application for a building permit was certified as complete after Jan. 26, 1992 unless it could be demonstrated that it was structurally impracticable.

Alterations

All altered portions of an existing facility must, to the maximum extent feasible, be made readily accessible to and usable by individuals with disabilities. If a primary function area is altered, the path of travel including restrooms, public telephones and drinking fountains serving that area must also be made readily accessible except where alterations to the path of travel are disproportionate (more than 20% of cost of the overall alterations project). Elevators are required in all new facilities except those less than 3 stories or those with less than 3000 S.F. per floor (shopping centers and professional offices of health care providers are not exempt, nor are airport passenger terminals or other stations used for specified public transportation.

Regulations and Standards:

The Attorney General issued regulations associated with this portion on July 26, 1991. ATBCB issued the design standards for Title III (ADA Accessibility Guidelines) on that same day. Additional regulations and corrections are issued in the Federal Register periodically.

Exemptions:

The Act does not apply to private clubs or establishments exempted from coverage under Title II of the Civil Rights Act of 1964, nor does it apply to religious organizations or entities controlled by religious organizations. Residential buildings, covered or not by FHAA, and Federal Buildings, covered by ABA, are also exempt from ADA.

Enforcement:

Those who believe themselves discriminated against may file a civil suit for injunctive relief limited to an order to alter the facilities to make them readily accessible to and usable by the disabled and / or the requirement of auxiliary aids or services, modification of policies or the provision of alternative methods, to the extent required by law. The U.S. Attorney General has the power to investigate alleged violations and file suit for appropriate relief including monetary (but not punitive) damages and civil penalties up to $50,000 for the first violation and $100,000 for any subsequent violation.

Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution including settlement negotiations, conciliation, facilitation, mediation, fact finding, mini-trials and arbitration is encouraged to resolve disputes arising under this Act.

Effective Dates:

In general, the effective date of this Title of the ADA Law was January 26, 1992. Smaller businesses were given either six months or a year extension depending on their size and their previous year's gross receipts.

All new construction with first occupancy after January 26, 1993 shall comply with the provisions of this Act. All alterations to existing facilities shall, to the maximum extent feasible, be made readily accessible to and usable by the disabled if construction began after January 26, 1992.

Notes:

1. Information presented above was taken from DOJ Title III Regulations and U.S. Public Law 101-336, July 26, 1990.

2. Limited tax credits are available to small businesses that make accommodations accessible to the disabled. Tax deductions for the removal of barriers to the disabled, allowed under IRC-190, were reduced in October 1990 to $15,000. An accountant should be consulted.

3. This is not legal advice. A competent lawyer should be consulted regarding any specific legal questions.

__________________________________________________________________________________________

_{Evan Terry Associates, P.C. • One Perimeter Park So, Suite 200S • Birmingham AL 35243}

_{• Phone 205/9729100 • TTY 205/9729112 • Fax 205/9729110}

_{www.evanterry.com • email: eta@evanterry.com}

◼ Summary of Key ADA Facility Requirements for Private Entities

[Click here to view or download the PDF version of "Summary of Key ADA Facility Requirements for Private Entities" (12 KB PDF)]

EXISTING

ALTERATION

NEW

CONSTRUCTION

PUBLIC ACCOMMODATIONS

*Readily Achievable Barrier Removal or

*Alternative methods to provide access to goods and services

*Modify Policies & Procedures

*Auxiliary Aids & Services

*Reasonable Accommodations For Employees

*ADAAG Compliance (To The Maximum Extent Feasible.)

*Path of Travel Alterations

*Modify Policies & Procedures

*Auxiliary Aids & Services

*Reasonable Accommodations for Employees

*Full ADAAG Compliance

*Modify Policies & Procedures

*Auxiliary Aids & Services

*Reasonable Accommodations for Employees

COMMERCIAL FACILITIES

*Reasonable Accommodations for Employees

*ADAAG Compliance (To The Maximum Extent Feasible)

*Path of Travel (Alterations)

*Reasonable Accommodations for Employees

*Full ADAAG Compliance

*Reasonable Accommodations for Employees

EXEMPT ENTITIES (T.III)

(See Local Codes)

*Reasonable Accommodations for Employees

(See Local Codes)

*Reasonable Accommodations for Employees

(See Local Codes)

*Reasonable Accommodations for Employees

Note: All Entities must make reasonable accommodations to their application, interviewing & advancement process to allow employees and potential employees with disabilities to have access. This may require physical alterations that are more extensive or costly than those required in the “Existing Facilities” column above. Private entities must also check all state and local disability access laws, building codes and zoning ordinances to determine where they are stricter than ADA requirements. Many public entities have recently passed new access laws.

__________________________________________________________________________________________

_{Evan Terry Associates, P.C. • One Perimeter Park So, Suite 200S • Birmingham AL 35243}

_{• Phone 205/9729100 • TTY 205/9729112 • Fax 205/9729110}

_{www.evanterry.com • email: eta@evanterry.com}

◼ ADA Facilities Compliance Strategies for Private Entities (11/00)

[Click here to view or download the PDF version of "ADA Facilities Compliance Strategies for Private Entities" (12 KB PDF)]

1.) TASK FORCE - Set up an interdepartmental ADA Task Force to coordinate all ADA compliance efforts for your organization.

2.) STUDY - Carefully review the requirements of each applicable section of the Regulations and ADA Accessibility Guidelines (ADAAG).

3.) CONSULT - Discuss your facilities' accessibility with your own employees who have disabilities and, if available, with local accessible design consultants and/or local disability support agencies. Remember, however, in consulting with such individuals that an individual with a particular disability may not be sensitive to the needs of individuals with other disabilities.

4.) ADOPT - Develop a detailed policy on accessibility for your facilities, communications, programs, services, policies, procedures, legal agreements and accommodations. Adopt it and communicate it, with implementation procedures, to all affected people.

5.) NOTIFY - Discuss the requirements of the ADA with your architects, interior designers, landscape architects, facility managers, maintenance, custodial staff, public relations staff and others who affect the accessibility of your facilities.

6.) REVIEW - Study all construction and remodeling projects in progress to minimize future problems with “readily achievable” barrier removal and/or failure to meet the “readily accessible” standard for those projects which are required to meet the full ADAAG.

7.) REMOVE BARRIERS - Survey your existing “public accommodations” facilities to identify barriers to people with disabilities. Analyze, set priorities and remove those barriers immediately where such removal is readily achievable. Where it is not readily achievable to remove them, provide alternative methods where they are readily achievable. If all barriers cannot be removed immediately, develop a phased implementation plan for removal.

8.) MAINTAIN - Assure that policies and procedures followed by custodial and maintenance staff or facility users do not reduce accessibility or create new barriers to individuals with disabilities.

9.) DOCUMENT - Keep detailed records of both the plan and process you are following and your progress in removing barriers. Track costs for all items. This is your “good faith effort” defense log.

10.) UPDATE - Review the accessibility of your facilities on an ongoing basis. Changes in technology, accessibility codes and guidelines may automatically upgrade the readily achievable standard, possibly requiring you to remove additional barriers in future years.

11.) MONITOR - Track all expenditures for alterations and renovations as well as for upgrades along the path of travel as required. These must be cataloged by date of expense per 36.403(h).

__________________________________________________________________________________________

_{Evan Terry Associates, P.C. • One Perimeter Park So, Suite 200S • Birmingham AL 35243}

_{• Phone 205/9729100 • TTY 205/9729112 • Fax 205/9729110}

_{www.evanterry.com • email: eta@evanterry.com}

◼ ADA Facilities Compliance Strategies for Private Hospitals (11/00)

[Click here to view or download the PDF version of "ADA Facilities Compliance Strategies for Private Hospitals" (40 KB PDF)]

1.) TASK FORCE - Set up an interdepartmental ADA Task Force to coordinate all ADA compliance efforts for the hospital.

2.) STUDY - Carefully review the requirements of each applicable section of the Regulations and ADA Accessibility Guidelines (ADAAG).

4.) ADOPT - Develop a detailed policy on accessibility for your facilities, communications, programs, communication, services, policies, procedures, legal agreements and accommodations. Adopt it and communicate it, with implementation procedures, to all affected people.

5.) NOTIFY - Discuss the requirements of the ADA with your architects, interior designers, landscape architects, facility managers, maintenance, housekeeping staff, patient services staff and others who affect the accessibility of your facilities.

8.) MAINTAIN - Assure that policies and procedures followed by housekeeping, patient services and maintenance staff or facility users do not reduce accessibility or create new barriers to individuals with disabilities.

11.) MONITOR - Track all expenditures for alterations and renovations as well as for upgrades along the path of travel as required. These must be cataloged by date of expense per 36.403(h).

__________________________________________________________________________________________

_{Evan Terry Associates, P.C. • One Perimeter Park So, Suite 200S • Birmingham AL 35243}

_{• Phone 205/9729100 • TTY 205/9729112 • Fax 205/9729110}

_{www.evanterry.com • email: eta@evanterry.com}

◼ ADA Facilities Checklist: Initial Questions for Private Entities (7/7/10)

[Click here to view or download the PDF version of "ADA Facilities Checklist: Initial Questions for Private Entities" (40 KB PDF)]

1. What is the organizational structure of the corporate ADA Task Force (focus group)? Who are the members at each level of responsibility, and what are their limitations of authority?

2. What kinds of plans are in place for changing lease agreements, owner/architect agreements, construction contracts, maintenance agreements, and other legal agreements related to corporate facilities?

3. What positive steps are being taken to review all new construction and alteration projects currently in the design process or under construction for ADA compliance?

4. Where are Public Accommodations functions located on corporate properties? Include public lobbies, cafeterias, training facilities, public tour routes, recreational areas open for use by guests, etc. (See list of public accommodations categories.) Are employment offices accessible?

5. Do any company policies, procedures or practices tend to discriminate against people with disabilities?

6. Does the company lease any space to any Public Accommodations? Does the company lease any space? If so, what do leases say relative to landlord/tenant responsibilities and approvals of alterations and renovations?

7. Does the company have any joint venture facility relationships with any Public Accommodations?

8. Does the company have any public/private facility relationships with any state or local governmental entities?

9. Have facility surveys been conducted to assess the level of effort needed with detailed options for barrier removal to meet the ADA “readily achievable” requirements and to budget for compliance expenditures? Are those reports thorough, accurate and usable? What is the status of design and construction on the barrier removal work?

10. Have procedures been established to solicit input from disabled employees? From disabled customers/visitors? From local disability groups?

11. Have procedures been established to receive and respond to requests for accommodations?

12. Has the company decided what level of commitment to make to ADA compliance? Which approach is the company taking: 1) Ostrich, 2) Minimal Compliance, 3) Whatever Makes Good Business Sense, or 4) Do Whatever Seems Right?

__________________________________________________________________________________________

_{Evan Terry Associates, P.C. • One Perimeter Park So, Suite 200S • Birmingham AL 35243}

_{• Phone 205/9729100 • TTY 205/9729112 • Fax 205/9729110}

_{www.evanterry.com • email: eta@evanterry.com}

◼ Handling Accessibility Complaints: Keeping out of Court

[Click here to view or download the PDF version of "Handling Accessibility Complaints: Keeping out of Court" (20 KB PDF)]

I. Requests, Complaints and Grievances

A. Procedures to catch requests and complaints early… and deal with them

1. Assess your current status of compliance

2. Set up a fully functional ADA Task Force

3. Head off complaints with a well-documented barrier removal plan.

4. Allocate 5% to 10% of your budget to requests and complaints.

5. Watch and Listen for inconveniences and grumbling.

6. Develop and USE a barrier removal request form / procedure.

a) Document the request and the individual who requested it.

b) Route the request by an access specialist if it looks too expensive.

c) Get a commitment and a budget to remove barriers.

d) Follow up with the individual – don't wait for them to call you back.

(1) Call if there are any questions or delays.

(2) Call as soon as commitment to remove barrier is firm.

(3) Call as soon as barrier is actually removed.

7. Integrating complaints into your barrier removal plans.

8. Physical barriers and employee attitudes cause 90% of facilities lawsuits.

9. Train your customer contact employees.

10. Be proactive but don't be paranoid – most people want accessibility and compliance but not lawsuits… if you're working on it, they'll be patient.

11. Use the modifications you make to attract new customers. The disability community has considerable buying power and is often surprisingly loyal to organizations that make sincere efforts to serve their needs.

II. Responding to a Lawsuit

A. Don't overreact. Most plaintiffs want to settle, they just file suits:

1. To get your full attention, or

2. To make sure that YOU pay their lawyer and expenses when you settle, or because

3. They believe that your organization has decided to fight.

B. Be careful of any attorney who wants to take an uncooperative stance and tightly control your response process unless you want an expensive fight. If you do plan to fight, make certain that your attorney is a real expert in disability law.

C. Consider an early meeting with the plaintiff(s) to see if they want a quick resolution.

D. Remember that settlement of any one lawsuit does not prevent future lawsuits by other plaintiffs. If the suit has pointed out weaknesses in your compliance efforts, settling it won't solve all your future problems. You need to review all of your responsibilities.

__________________________________________________________________________________________

_{Evan Terry Associates, P.C. • One Perimeter Park So, Suite 200S • Birmingham AL 35243}

_{• Phone 205/9729100 • TTY 205/9729112 • Fax 205/9729110}

_{www.evanterry.com • email: eta@evanterry.com}

◼ Accessibility Policy for Public Entity (12/00)

[Click here to view or download the PDF version of "Accessibility Policy for Public Entity" (12 KB PDF)]

It is the policy of ______________________________(public entity) to make our programs, services, benefits and activities (when viewed in their entirety) accessible to all people including people with disabilities.

If a disability prevents you from fully participating in our programs we would like your input and ideas on how we can serve you better.

Please describe the nature of the problem you have encountered.

Please describe what we could do to provide better access for you.

Name ________________________________________

Address __________________________________________________________________

Phone ________________________________________

(Instruction: This form can be used by public entities after they have modified policies and procedures and removed architectural and communication barriers to program access. This will allow people with disabilities to gain access to the programs offered. The back of the sheet may be used to track internal routing, approvals and follow up calls according to organizational policies and procedures. Consistent use of this form should minimize unpleasant surprises and provide for early resolutions of access concerns without legal action.)

__________________________________________________________________________________________

_{Evan Terry Associates, P.C. • One Perimeter Park So, Suite 200S • Birmingham AL 35243}

_{• Phone 205/9729100 • TTY 205/9729112 • Fax 205/9729110}

_{www.evanterry.com • email: eta@evanterry.com}

◼ Accessibility Policy for Public Accommodation (12/00)

[Click here to view or download the PDF version of "Accessibility Policy for Public Accommodation" (12 KB PDF)]

It is the policy of ______________________________(company) to make our services, facilities, programs, and accommodations accessible to all people including people with disabilities.

If a disability prevents you from fully using our facility or enjoying our goods, services and programs, we would like your input and ideas on how we can serve you better.

Please describe the nature of the problem you have encountered.

Please describe what we could do to provide better access through barrier removal, alternative methods, auxiliary aids or services.

Name ________________________________________

Address ________________________________________________________________________

Phone ________________________________________

(Instructions: To be used by a public accommodation after they have modified policies and procedures and removed architectural and communication barriers. A form similar to this may be used and a procedure set in place to provide an avenue for anyone with a disability to make a particular accessibility problem known. This allows the person with a disability to see that those responsible for the facility are making a good faith effort to provide access in their facility. The back of the sheet may be used to track internal routing, approvals and follow up calls according to company policies and procedures. Consistent use of this form should minimize unpleasant surprises and provide for early resolutions of access concerns without legal action.)

__________________________________________________________________________________________

_{Evan Terry Associates, P.C. • One Perimeter Park So, Suite 200S • Birmingham AL 35243}

_{• Phone 205/9729100 • TTY 205/9729112 • Fax 205/9729110}

_{www.evanterry.com • email: eta@evanterry.com}

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