ADA Compliance Process by Evan Terry Associates

◼ 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.”

__________________________________________________________________________________________

_{Title II Overview • ©1995 Evan Terry Associates, P.C. • Birmingham, AL}

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

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