ADA Title II Action Guide for State and Local Governments

Introduction

There are five Titles in the Americans with Disabilities Act. Title II is divided into two parts. Subtitle A covers all programs, services, and activities of state and local government.  Subtitle B contains requirements for public transportation systems such as regional transit authorities.  For the complete requirements read the Department of Justice’s ADA Title II regulations 28 CFR Part 35 Nondiscrimination on the Basis of Disability in State and Local Government Services.

For requirements specific to transportation read the Department of Transportation’s Transportation Services for Individuals with Disabilities (ADA) 49 CFR Part 37  and ADA Accessibility Specifications for Transportation Vehicles 49 CFR Part 38

In this section we discuss key aspects of Title II Subtitle A.

Under Title II of the ADA people with disabilities must have an equal opportunity to participate in and benefit from state and local governments’ programs, services, and activities. Applying for a business license, using a town playground, participating in a county fair, registering to vote, and attending a public university are some of public entities’ programs, services and activities covered by the ADA.

Who has Obligations

Title II applies to state and local governments including state executive agencies, courts, legislatures, towns, cities, counties, school districts, universities, community colleges, water districts, special purpose districts, regional transit authorities, other state and local government instrumentalities and AMTRAK.

In some cases it is difficult to determine whether a particular entity that is providing a public service, such as a library, museum, or volunteer fire department, is in fact a public entity. Where an entity appears to have both public and private features, it is necessary to examine the relationship between the entity and the governmental unit to determine whether the entity is public or private. Factors to be considered in this determination include --

1. Whether the entity is operated with public funds;

2. Whether the entity's employees are considered government employees;

3. Whether the entity receives significant assistance from the government by provision of property or equipment; and

4. Whether the entity is governed by an independent board selected by members of a private organization or a board elected by the voters or appointed by elected officials.

Who is Protected

To be protected under the ADA a person needs to meet the ADA’s definition of disability and be “qualified.” We’ll discuss the definition of disability first, and then we’ll discuss what it means to be “qualified.”

Definition of Disability

The definition of disability has three parts. A person only has to meet one of the parts to be covered.

The definition applies to a person who:

1. has a physical or mental impairment that substantially limits one or more major life activities; or

2. has a history or record of a physical or mental impairment that substantially limited one or more major life activities; or

3. is regarded as having an impairment, whether the person has the impairment or not.

Part 1 covers people who currently have a physical or mental impairment that substantially limits one or more major life activities. It does not apply to people whose impairment is unsubstantial, such as someone who is slightly nearsighted or someone who is mildly allergic to pollen.

Both A.Z. and B.Y. are protected under the first part of the definition.

The definition also applies to people, whose impairment substantially limits a major life activity but can be moderated or mitigated.

These people are protected under the first part of the definition.

Part 2 covers people who have a history or record of a physical or mental impairment that substantially limited one or more major life activities.

These people are protected under the second part of the definition.

Part 3 of the definition is a bit more complicated. It was included in the ADA to protect people who might not meet either of the first two parts of the definition, but who are subject to adverse decisions by covered entities based upon unfounded concerns, fears, or prejudices. A person is protected under this third part when a covered entity takes an action prohibited by the ADA because of an actual or perceived impairment.

These people are protected under the third part of the definition.

Broad Coverage

The ADA Amendments Act of 2008 states that the definition of disability should be construed in favor of broad coverage of people to the maximum extent permitted by the law and generally should not require extensive analysis. In the past, there was some debate over what activities were considered "major life activities" for ADA purposes. One of the most contentious issues was whether someone with a medical condition that only affected internal functions would be covered. Conditions such as gastrointestinal disorders, diabetes, cancer and heart disease often only affect bodily functions without producing any outward limitations such as difficulty walking, talking or performing manual task. The ADA Amendments Act cleared up the confusion by stating that bodily functions are indeed major life activities. The law lists functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Congress wanted the focus to be on ensuring that people have an equal opportunity to participate and are not discriminated against, rather than on whether someone meets a narrow definition.

Exclusions

The following are excluded from the definition of disability: transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs.

Check your state law, many have anti-discrimination laws similar to the ADA and they may protect people with some of of these conditions.

Illegal Use of Drugs

A public entity may withhold services or benefits from a person who is currently engaging in the illegal use of drugs. "Current use" is the illegal use of controlled substances that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem. A public entity should review carefully all the facts surrounding its belief that an individual is currently taking illegal drugs to ensure that its belief is a reasonable one. That some states have adopted medical and/or recreational marijuana use does not affect the ADA. Under federal law, cannabis is treated like every other controlled substance, such as cocaine and heroin and is illegal. It’s important to note that a person with a history of drug use who has been successfully rehabilitated or someone who is participating in a drug rehabilitation program and currently not engaging in the illegal use of drugs is protected. Also health care and drug rehabilitation services cannot be denied to a person on the basis of that person's current illegal use of drugs if the person is otherwise qualified to receive such service.

What Does It Mean to be Qualified?

Protections under the ADA are afforded to qualified individuals with disabilities. The definition of “qualified” has two forms.

1. For determining participation in programs, services and activities, a person is qualified if the person meets the essential eligibility requirements for the receipt of services or participation in programs.

2. For purposes of employment, a person is qualified if the person is able to perform the essential functions of the job with or without reasonable accommodation.

The "essential eligibility requirements" for participation in many activities is minimal. Most public entities provide information about their programs, activities, and services upon request. In such situations, the only "eligibility requirement" for receipt of such information would be to request it. Under other circumstances, the "essential eligibility requirements" may be more specific.

Direct Threat

A person who poses a direct threat to the health or safety of others is not "qualified." A "direct threat" is a significant risk to the health or safety of others that cannot be eliminated or reduced to an acceptable level by modification of policies, practices, or procedures, or by the auxiliary aids or services. The determination of direct threat must be based on objective factual evidence and an individualized assessment of the person. Factors include: 1) The nature, duration, and severity of the risk; 2) The probability that the potential injury will actually occur; and, 3) Whether reasonable modifications of policies, practices, or procedures will mitigate or eliminate the risk.

General Nondiscrimination

Equal Opportunity

Title II requires that people with disabilities have an equal opportunity to participate in public entities’ programs, services and activities in the most integrated manner appropriate.

Sometimes policies and practices are explicitly exclusionary.

And sometimes policies and practices appear neutral but have a discriminatory effect.

Equal treatment is a fundamental purpose of the ADA. People with disabilities must not be treated in a different or inferior manner.

Contracting with Other Entities to Provide Programs, Services or Activities

The general nondiscrimination requirement and all of Title II apply whether a public entity provides the program, service or activity itself or is contracting with another entity to do so. This is particularly important because over the last 20 or so years many government services have been prioritized. In these cases the public entities must make sure the private business or organization they are contracting with uphold the same level of obligation as the public entity itself.

Integration

A primary goal of the ADA is the equal participation and integration of people with disabilities in the mainstream of American life. A person with a disability must be integrated to the maximum extent appropriate for that person. The goal is to encourage interaction among all user and participants. In the past (and currently) public entities provided separate programs for people with disabilities without considering whether or not the services, programs and activities could be provided in an integrated manner. Sometimes public entities denied people with disabilities the right to participate in the programs provided to everyone else even if they were qualified to participate.

There are circumstances where it is appropriate for public entities to establish programs, services and activities that are specifically for people with disabilities.

But public entities may not deny participation in “regular” programs, services and activities.

The Supreme Court's decision in Olmstead v. L.C., illustrates the broad reach of the integration mandate. Two women who had mental illness and developmental disabilities were treated at the psychiatric unit of a state hospital. After the treatment mental health professionals stated the women should move to a community-based program. However, the women stayed in the hospital for several years. The Supreme Court held that public entities must provide community-based services to people with disabilities when such services are appropriate and that "institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable of or unworthy of participating in community life."

Eligibility Criteria

Public entities may not use eligibility criteria that screen out or tend to screen out people with disabilities unless the eligibility criteria are necessary to participate in the program, service or activity.

However, neutral rules such as legitimate safety qualifications are permitted even when the effect is to screen out people with disabilities.

Safety

Requirements that are necessary for safe operation of a program, service, or activity are allowed, but they must be based on a current, objective assessment of the actual risk, not on assumptions, stereotypes, or generalizations about people with disabilities.

Whether a specific requirement is "essential" will depend on the facts of the particular case and should take into account reasonable modifications of policies, practices and procedures.

Separate Programs

Title II permits public entities to design programs that are specifically for people with disabilities.

When a public entity has an alternative and a “regular” program, people with disabilities must be able to choose to participate in either or both programs.

Inquiries Concerning Disability

The Title II regulations do not address inquiries concerning disability the way the Title I employment regulations do. Title I permits employers to make disability-related inquiries or require a medical examination if such are “job-related and consistent with business necessity.” For example if an employee with a non-apparent disability requests a reasonable accommodation, an employer may require medical information that indicates the employee has an ADA disability and needs what is being requested.

Although the regulations don’t address this issue, the Department of Justice’s ADA Title II Technical Assistance Manual states that a public entity should not make “unnecessary inquiries” concerning disability. Turn this around and it means that “necessary” inquiries are permitted. It’s up to each public entity to determine what information is “necessary.”

Maintenance of Accessible Features

The regulations recognize that it is not sufficient to provide features such as elevators, toilet rooms and assistive listening systems if those features are not maintained in a manner that enables people with disabilities to use them. Inoperable elevators, locked accessible doors, routes that are obstructed by furniture are neither "accessible to" nor "usable by" people with disabilities. Assistive listening systems with failed batteries or that no one can find do not provide effective communication. Accessible features that are required by the Title II regulations must be maintained to ensure ongoing accessibility.

Temporary access interruptions are permitted, but must be remedied as soon as possible and may not extend beyond a reasonable period of time. If an accessible feature such as a wheelchair lift breaks down the public entity must ensure that improper or inadequate maintenance does not cause repeated failures.

Personal Devices and Services

Public entities are not required to provide personal devices such as wheelchairs and walkers or services such as assistance eating, toileting or dressing.

Surcharges

Certification and Licensing

Many public entities license or certify individuals and businesses such as nurses, drivers, realtors and day care providers. A person with a disability cannot be denied licensure or certification if the person meets the essential eligibility requirements. The phrase "essential eligibility requirements" is critical because licensing programs usually require applicants to demonstrate specific skills, knowledge, and abilities. Public entities must make sure the requirements are necessary for the safe operation of the program and are not based on stereotypes or assumptions.

Ticketing (Assembly areas, not parking.)

Not all public venues, ticket sellers, and distributors provide the same opportunity to purchase tickets for wheelchair-accessible seats and non-accessible seats. Often the purchaser is directed to send an e-mail or to call a separate telephone number to request tickets. These policies make it difficult for those who require accessible seats to purchase tickets, especially for popular events that sell out in minutes. Venues are required to sell tickets for accessible seats in the same manner and under the same conditions as all other ticket sales.

Tickets for accessible seats must be sold during the same hours; through the same methods of purchase (by telephone, on site, through a website, or through third-party vendors); and during the same stages of sales (pre-sales, promotions, general sales, wait lists, or lotteries) as non-accessible seats. When a venue provides tickets to a third-party ticket vendor, including Internet-based vendors, the venue must include comparable tickets for accessible seats. If a section of the venue that has a lower ticket price is not accessible a proportional number of seats in an accessible location must be sold at the lower price. The ratio of the total number of seats in the non-accessible price level to the total number of seats in the venue is used to determine the number of accessible seats that must be provided in an accessible location.

Venues must provide the same information about accessible seats as provided about non-accessible seats, using the same text and visual representations. Typically information about location, price, view, and seat availability is provided. Accessible seats must be described in enough detail to permit the purchaser to determine if a seat meets his or her needs. If a venue has detailed maps or displays of seating configurations on its website or if it provides seating information in its pamphlets or brochures, including information for particular events or shows, it must include information on accessible seating in the same detail as is provided on non-accessible seating.

People purchasing a ticket for an accessible seat may purchase up to three additional seats for their companions in the same row and these seats must be contiguous with the accessible seat. Accessible seats may be used as companion seats. If contiguous seats have already been sold and are not available, the venue must offer other seats as close as possible to the accessible seat.

Venues cannot require proof of disability as a condition for purchasing tickets for accessible seats. However, venues and third-party vendors may take steps to prevent the fraudulent sale and use of accessible seating. For single event tickets, venues may ask purchasers to state that they require, or are purchasing tickets for someone who requires, the features of an accessible seat. For series of events tickets, purchasers may be asked to attest in writing that they require, or are purchasing tickets for someone who requires, the features of an accessible seat. These steps may be used in all sales, including those over the Internet.

The regulations also address the following: group sales, hold and release of accessible seating tickets, ticket transfer and secondary market ticketing. A public entity’s ticketing and venue policies should be reviewed as part of a self-evaluation.

Reasonable Modification of Policies, Practices, and Procedures

Reasonable modification is a key concept in Title II (and III) regulations, and often leads to confusion. The regulations state that public entities must modify policies, practices and procedures when necessary to assure a person with a disability an equal opportunity, unless to do so would fundamentally alter the nature of the service, program, or activity. Determining when a modification is necessary and whether or not it results in a fundamental alteration is not always easy.

Sometimes a practice that seems neutral makes it difficult or impossible for a person with a disability to participate. Many routine policies, practices, and procedures are adopted by public entities without thinking about how they might affect people with disabilities. Sometimes a practice that seems neutral makes it difficult or impossible for a person with a disability to participate. In these cases, the ADA requires public entities to make “reasonable modifications” in their usual ways of doing things when necessary to accommodate people who have disabilities.

Other Power-driven Mobility Devices (OPDMDs)

Most people are familiar with manual and power wheelchairs and electric scooters used by people with mobility disabilities. In recent years, some people with mobility disabilities have begun using less traditional mobility devices such as golf cars or Segways®. These devices are called "other power-driven mobility devices" or OPDMDs. Public entities must allow people with disabilities who use OPDMDs to enter the premises unless a particular type of device cannot be accommodated. This is another example of a reasonable modification of policies, practices, or procedures.

In deciding whether an OPDMD can be accommodated, the following may be considered:

• type, size, weight, dimensions, and speed of the device;

• volume of pedestrian traffic (which may vary at different times of the day, week, month, or year);

• the facility's design and operational characteristics;

• whether legitimate safety requirements can be established to permit the safe operation of the OPDMD; and

• whether the use of the OPDMD creates a substantial risk of serious harm to the environment or natural or cultural resources, or poses a conflict with federal land management laws and regulations.

Public entities may set speed and other limits.

For some facilities - such as a state park - most public entities will likely determine that certain OPDMDs used by people with disabilities can be allowed wherever the public is allowed to go. For other facilities -- such as a town hall - public entities may determine that certain OPDMDs cannot be accommodated.

Public entities are allowed to ask a person using on OPDMD to provide “credible assurance” that the device is used because of a disability, such as a valid state-issued disability parking placard or a state-issued proof of disability. If the person does not have documentation, but indicates verbally that the OPDMD is being used because of a mobility disability, that also must be accepted, unless the person is observed doing something that contradicts the assurance (like running or jumping).

Although not required, many public entities develop written policies specifying which kinds of OPDMDs will be permitted and where and when they will be permitted, based on the assessment factors noted previously.

Service Animals

One of the most common, confusing and contentious requests for reasonable modifications of policies, practices, or procedures concerns service animals.

Many people with disabilities use a service animal to fully participate in everyday life. Dogs can be trained to perform tasks such as:

• Guiding a person who is blind.

• Providing stability for a person who has difficulty walking.

• Alerting a person who has hearing loss when someone is approaching from behind.

• Picking up items for a person who uses a wheelchair.

• Preventing a child with autism from wandering away.

• Alerting and protecting a person who is having a seizure.

• Reminding a person with mental illness to take prescribed medications.

• Calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack.

Title II makes a distinction between psychiatric service animals and emotional support animals. If a dog has been trained to sense an oncoming anxiety attack and acts to help avoid the attack or lessen its impact, the dog would qualify as a service animal. However, if the dog’s mere presence provides comfort, that would not be considered a service animal.

People with disabilities are not required to use a professional training program; they have the right to train the dogs themselves. A public entity cannot require medical documentation of disability, a service animal identification card, a special vest or training documentation.

When it is not obvious what service a dog provides, a public entity may ask two questions:

1. Is the dog a service animal required because of a disability?

2. What work or task has the dog been trained to perform?

A public entity is not required to permit a service animal if the animal would create a legitimate safety risk or would fundamentally alter the nature of a public entity’s programs, services, or activities.

Public entities may also exclude service animals if the animal is out of control and the handler does not regain control; the animal is not housebroken; or the animal poses a direct threat, based on the animal's behavior or history. Public entities may not restrict particular breeds.

Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.

Establishments that sell or prepare food must allow service animals in public areas even if state or local health codes prohibit animals on the premises.

Service animals must be under the control of the handler and be harnessed or leashed, unless these devices interfere with the animal’s work or the person’s disability prevents using these devices. In that case, the person must maintain control of the animal through voice, signal, or other controls. Staff are not required to provide care or food for a service animal.

Miniature Horses

Some people with disabilities use miniature horses rather than dogs because they live longer, have peripheral vision, and are permitted in religions where dogs are not acceptable. Public entities must allow miniature horses to accompany people with disabilities where “reasonable.” Four factors may be used to determine what is reasonable:

1. The miniature horse is housebroken.

2. The miniature horse is under the owner’s control.

3. The facility can accommodate the miniature horse’s type, size, and weight.

4. The miniature horse does not compromises legitimate, necessary safety requirements.

Effective Communication

Many people with disabilities are prevented from participating fully in programs, activities and services because of communication difficulties. To address this, the ADA requires that communication with people with disabilities must be “as effective” as communication with others. Generally this part of the regulations applies to people who are deaf, people who are hard of hearing, people who are blind, people with low vision and people with speech disabilities. 

Auxiliary Aids and Services

Often ensuring effective communication requires public entities to provide “auxiliary aids and services” which may include the following:

For people who are deaf or have hearing loss:

• qualified interpreters on-site or through video remote interpreting (VRI) services

• real-time computer-aided transcription services  (CART)

• written materials

• exchange of written notes

• typing on a tablet or computer

• assistive listening devices

• open and closed captioning, including real-time captioning

• videophones

• videotext displays

For people who are blind or have vision loss:

• large print materials

• audio recordings

• Brailled materials

• screen reader software

• magnification software

• notetakers

• qualified readers

• optical readers

• secondary auditory programs (SAP)

For people who have speech disabilities:

• exchange of written notes or typed communication

• qualified speech-to-speech transliterators (a person trained to recognize unclear speech and repeat it clearly)

The type of auxiliary aid or service will vary in accordance with the method of communication used by the person; the nature, length, and complexity of the communication and the context in which the communication occurs. What is required to communicate effectively when a person is registering for classes at a public university is very different from what is required to communicate effectively in a court proceeding.

Primary Consideration

Public entities are required to give primary consideration to the type of auxiliary aid or service requested by the person with the disability unless they can demonstrate that another equally effective means of communication is available or that the aid or service requested would fundamentally alter the nature of the program, service, or activity or would result in undue financial and administrative burdens. 

The auxiliary aid or service must be effective. If a public entity chooses Video Remote Interpreting (VRI – where the interpreteris [sic] off-site and communication occurs with computer equipment) rather than face-to-face, the public entity must make sure the quality is comparable. The regulations include specific performance standards for VRI.

Companions

In many situations, covered entities communicate with someone other than the person who is participating in the program, service or activity. The ADA refers to such people as “companions” and requires public entities to provide effective communication for companions who have disabilities

Effective communication with companions is particularly critical in health care settings where miscommunication may lead to misdiagnosis and improper or delayed medical treatment. A companion may be legally authorized to make health care decisions on behalf of the patient or may need to help the patient with information or instructions given by hospital personnel. A companion could be designated by the patient to communicate with hospital personnel about the patient's symptoms, needs, condition, or medical history.

In the past (and currently), some public entities have expected a person who uses sign language to bring a family member or friend to interpret. Often people with disabilities have to rely on their children to interpret. Providing sign language interpreters is the public entity’s obligation. The interpreter must be qualified and impartial; specialized vocabulary may be needed to interpret effectively and accurately. A public entity can rely on another person to interpret in two situations.

1. In an emergency involving an imminent threat to the safety or welfare, an adult or minor child may be relied upon to interpret when a qualified interpreter is not available.

2. In situations not involving an imminent threat, an adult accompanying someone who uses sign language may be relied upon to interpret when a) the person requests this, b) the accompanying adult agrees, and c) reliance on the accompanying adult is appropriate under the circumstances. This exception does not apply to minor children.

Undue Burden

Public entities are not required to provide an auxiliary aid or service that would fundamentally alter the program, service, or activity or would result in undue financial and administrative burdens. 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 another aid or service that provides effective communication, if possible.

If the requested auxiliary aid or service would result in an undue burden or a fundamental alteration, the public entity still has an obligation to provide another aid or service that provides effective communication, if possible. The decision that a particular aid or service would result in an undue burden or fundamental alteration must be made by a high level official, no lower than a Department head, and must be accompanied by a written statement of the reasons for reaching that conclusion. All resources available for use in the funding and operation of the service, program, or activity must be considered.

Telecommunication Relay Services (TRS)

Telecommunications Relay Services allows people with hearing or speech disabilities to place and receive telephone calls. Public entities’ staff who answer the telephone must treat relay calls like other calls. TRS calls usually take more time than “regular” calls. If you get a call from a relay service don’t hang up! They are not telemarketers.

Here are the two most common Telecommunication Relay Services:

Video Relay Service (VRS) is used by people who prefer sign language communication rather than typing.  The person who is deaf signs to the communication assistant who then voices to the hearing telephone user what the person is signing. The communication assistant listens to the voice telephone user and signs to the person who is deaf what a voice telephone user says.

Text-to-Voice TTY-based is a "traditional" TRS service. The person with a disability uses a TTY or other text input device to contact a communication assistant at the telephone relay center. TTYs allow people to type their telephone conversations. The communication assistant contacts the hearing telephone user and reads the text that the caller typed. The callee voices to the communication assistant. The communication assistant relays the call back and forth between the parties by speaking what a text user types, and typing what a voice telephone user says.

For both services, the communication assistant will explain to the voice telephone user how the system works.

TRS works in both directions. If a public entity wants to contact a person who can’t use a phone system the “regular” way, the TRS can be used. The public entity contacts the TRS, provides the individuals phone number, the TRS communication contacts the individual being called and communication occurs. Again, this could be by video relay service or TTY relay.

For most public entities the telecommunication relay service provides “effective communication” for people with disabilities communicating by telephone. 

Emergency Services

However, public entities that provide direct access to emergency services such as police, fire and ambulance, which often includes 911, must provide direct access for people with disabilities who use TTYs and computer modems. The relay system may not be relied on for emergency situations. Public entities may determine the appropriate technology for their emergency telephone systems.

Building Accessibility

New Construction

New construction and alterations must be readily accessible to and usable by people with disabilities. Here are the compliance dates and the applicable ADA Standards.

All areas of newly designed and newly constructed buildings and facilities and altered portions of existing buildings and facilities must comply with the requirements even if the use type is not listed in the Standards.

All areas must comply unless specifically exempted in the Standards or where scoping limits the number of multiple elements required to be accessible.

Alterations

Where elements or spaces are altered, the altered element or space must comply with the ADA Standards; except where compliance would be "technically infeasible.” If compliance is technically infeasible, the alteration must comply to the maximum extent feasible. Technically infeasible means: “… something that has little likelihood of being accomplished because existing structural conditions would require removing or altering a load-bearing member that is an essential part of the structural frame; or because other existing physical or site constraints prohibit modification or addition of elements, spaces, or features that are in full and strict compliance with the minimum requirements. “ Note that cost is not a factor in a technical infeasibility determination.

Alterations to primary function areas - where major activities take place - require additional accessibility. Primary function areas include the dining area of a cafeteria, the meeting rooms in a conference center, the classrooms in a school, as well as offices and other work areas in which the activities of the public entity take place. Restrooms are not primary function areas unless the provision of restrooms is a primary purpose of the area, for example, in highway rest stops. Alterations to primary function areas trigger an accessible "path of travel" requirement, that is, a requirement to make the path of travel from the entrance to the altered primary function area -- and telephones, restrooms, and drinking fountains that serve the altered area – accessible. An accessible path of travel may consist of walkways, parking access aisles, curb ramps, regular ramps, doorways, paths through lobbies and corridors, elevators and lifts.

An entity is not required to spend more than 20% of the cost of the original alteration on making the path of travel accessible, even if this cost limitation results in less than full accessibility. When the cost of alterations necessary to make the path of travel to the altered area fully accessible is disproportionate to the cost of the overall alteration, the path of travel shall be made accessible to the extent that it can be made accessible without incurring disproportionate costs.

Alterations undertaken within a three year period are considered when determining disproportionality. A lift that would cost more than 20% of the cost of an alteration, may be 20% or less when adding together alterations to primary function areas within a few years.

Historic Preservation

Buildings that are eligible for listing in the National Register of Historic Places or designated as historic under state or local law are not required to take any action that would “threaten or destroy” the historic significance of the property. Where the State Historic Preservation Officer or Advisory Council on Historic Preservation determines that compliance with the requirements for accessible routes, entrances, or toilet facilities would threaten or destroy the historic significance of the building or facility, the exceptions for alterations to qualified historic buildings or facilities for that element shall be permitted to apply.

Historic preservation programs whose primary purpose is for visitors to experience the historic site itself (as opposed to other types of programs that happen to be housed in historic buildings) should make the facility accessible. Where it is not feasible to provide physical access without threatening or destroying the historic significance of the property, alternative methods of achieving program access must be used.

Frequently used methods include using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible and assigning staff or volunteers to guide people with disabilities into or through portions of historic properties that cannot otherwise be made accessible. The regulations encourage public entities to develop other innovative methods to ensure program access.

Program Accessibility

Many people with disabilities are unable to take advantage of public entities’ programs, services, or activities because of steps at entrances, small toilet rooms, lack of accessible play areas and other inaccessible features. Public entities must ensure that people with disabilities are not excluded from programs, services, or activities because facilities are inaccessible. There is no “grandfather” clause that exempts old facilities. Programs, services, and activities, when “viewed in their entirety” must be readily accessible to and usable by people with disabilities. This is known as program accessibility. Think broadly, program access applies to everything a public entity does from county prison services to state park swimming pools to getting a municipal wedding license. If it’s something that’s offered to the public (even unwillingly, like prison services) people with disabilities have a right to participate and benefit.

In many situations altering facilities and constructing new accessible facilities is the most efficient method of providing program accessibility. However the ADA permits a public entity flexibility by allowing both structural and nonstructural methods of achieving program accessibility.

 People with disabilities must have comparable access to programs and services.

A program will be “viewed in its entirety” for purposes of program accessibility standard. A public entity is not necessarily required to make each of its existing facilities accessible if alternative, accessible locations are available.

When structural change is the method chosen to provide program accessibility, the alterations must comply with the 2010 ADA Standards for Accessible Design, unless it is technically infeasible to do so. When full compliance is not technically feasible, the alteration must follow the Standards to the maximum extent feasible. For example, if there is not enough space to install a ramp with a slope no steeper than 1:12, a public entity may install a ramp with a slightly steeper slope. However, deviations from the Standards must not pose a significant safety risk.

Structural changes may include combining two toilet compartments to create an accessible toilet compartment, lowering a section of a service counter, installing a ramp at a building entrance and lowering a mirror in a toilet room. Although automatic door openers are not required under the ADA they can be usedl to ensure appropriate maneuvering clearances at doors so that people who use wheelchairs and other mobility devices can get in and out of a building.

Safe Harbor

The 2010 ADA Standards are, for most building elements, the same as the 1991 ADA Standards and the Uniform Federal Accessibility Standards. But requirements for some elements have changed.

If a facility was in compliance with the 1991 Standards or UFAS as of March 15, 2012, the facility is not required to be altered to meet the 2010 Standards. This provision is referred to as “safe harbor.”

The safe harbor status does not apply to elements that are new in the 2010 ADA Standards and did not exist in the 1991 ADA Standards. Those include the following:

• Residential facilities dwelling units

• Amusement rides

• Recreational boating facilities

• Exercise machines and equipment

• Fishing piers and platforms

• Golf facilities

• Miniature golf facilities

• Play areas

• Saunas and steam rooms

• Swimming pools, wading pools, and spas

• Shooting facilities with firing positions

• Miscellaneous.

  1. Team or player seating

  2. Accessible route to bowling lanes, section

  3. Accessible route in court sports facilities

Public entities need to make structural changes to these recreational elements and to their residential dwelling units to ensure that people with disabilities can participate in those programs, services and activities.  Not all recreation areas must necessarily be made accessible. If a county has multiple play areas and limited resources, it can decide which play areas to make accessible based on factors such as the geographic distribution of the sites, public transportation, the hours of operation and the types of activities at each site so that the play program as a whole is accessible to people with disabilities.

Undue Burden

As with the effective communications obligation, there are limitations on the program accessibility requirement. A public entity does not have to take any action that it can demonstrate would result in a fundamental alteration in the nature of its program or activity or in undue financial and administrative burdens. This determination can only be made by the head of the public entity or his or her designee and must be accompanied by a written statement of the reasons for reaching that conclusion. The determination that undue burdens would result must be based on all resources available for use in the program. If an action would result in such an alteration or such burdens, the public entity must take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits and services of the program or activity.

Web Accessibility

The increasing use of web sites allows for easy and convenient access to the programs, services, and activities of public entities. The public can pay fines, apply for benefits, renew state-issued identification, register for classes at school, file taxes, apply to a social service program and complete many other activities. If websites are not accessible, people with disabilities are denied equal access.  In the Department of Justice’s technical information publication, Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, two resources are listed to provide guidance for web developers designing accessible web pages.

One is the Section 508 Standards, which federal agencies must follow for new web pages and the other is the Web Content Accessibility Guidelines (WCAG) published by the World Wide Web Consortium (W3C), Web Accessibility Initiative (WAI). Information on both of these is in the Resources section. In its Project Civic Access settlement agreements with local governments the Department of Justice stipulates compliance with WCAG 2.0 AA.

The major categories of disability that WCAG addresses are visual, hearing, motor and cognitive. The following are some quick tips from the Web Accessibility Initiative:

• Provide sufficient contrast between foreground and background.

• Don't use color alone to convey information.

• Ensure that interactive elements are easy to identify.

• Provide clear and consistent navigation options.

• Ensure that form elements include clearly associated labels.

• Provide easily identifiable feedback.

• Use headings and spacing to group related content.

• Create designs for different viewport sizes.

• Include image and media alternatives in your design.

• Provide controls for content that starts automatically.

Emergency Preparedness

Making sure that people with disabilities have full access to state and local government emergency preparedness and response programs is a critical part of ADA obligations.  Include the needs of people who use mobility aids such as wheelchairs, scooters, walkers, canes or crutches, or people who have limited stamina. Plans should also include people who use oxygen or respirators, people who are blind or who have low vision, people who are deaf or hard of hearing,  people who have a cognitive disability, people with mental illness, and those with other disabilities.

Issues that have the greatest impact on people with disabilities include:

• Notification - Many traditional emergency notification methods are not accessible to or usable by people with disabilities. People who are deaf or hard of hearing cannot hear radio, television, sirens, or other audible alerts. Those who are blind or who have low vision may not be aware of visual cues, such as flashing lights. Warning methods should be developed to ensure that all citizens will have the information necessary to make sound decisions and take appropriate, responsible action.

• Evacuation – People with a mobility disability may need assistance leaving a building without a working elevator. People who are blind may not be able to use traditional orientation and navigation methods. A person who is deaf may be trapped and unable to communicate because the only communication device relies on voice. Procedures should be in place to ensure that people with disabilities can evacuate the physical area under different conditions.

• Emergency transportation - Accessible transportation may be needed to evacuate people with disabilities. Some communities have used lift-equipped school to evacuate people who use wheelchairs during floods.

• Medication, refrigeration, and back-up power - A reasonable number of shelters should have back-up generators and a way to keep medications in a refrigerator or a cooler with ice. These shelters should be made available on a priority basis to people who require access to electricity and refrigeration, for example, for using life-sustaining medical devices, providing power to motorized wheelchairs, and preserving medications.

• Locations of accessible emergency shelters and other shelters with specific feature - The public should be notified about the location of these shelters. Emergency personnel need lists of where they are and information should be easily found on websites.

• Service animals - People with disabilities who use service animals should not be separated from their service animals, even if pets are not permitted. Service animals are the responsibility of their handlers who must keep them under control at all times. 

• Access to information - Communication must be accessible for people who are deaf or hard of hearing. Staff and volunteers should be trained on basic ways to provide accessible communication, including exchanging notes or posting written announcements to go with spoken announcements. Staff and volunteers should read printed information, upon request, to people who are blind or who have low vision.

Public Elementary and Secondary Schools

In addition to the ADA Title II requirements that we’ve addressed (general nondiscrimination, reasonable modifications of policies, practices and procedures; ensuring effective communication through providing auxiliary aids and services; program accessibility); public school districts have an obligation to ensure an equal educational opportunity through the provision of a free appropriate public education (FAPE).  The FAPE requirements are in Subpart D of the U.S. Department of Education’s Section 504 regulation. Because of the close nature of Section 504 and Title II, the FAPE requirements are incorporated in the general nondiscrimination provisions of Title II.

As a public school district evaluates its compliance with respect to other people with disabilities (such as employees, parents of students, and the general public), it must also consider the specific provisions in the Section 504 regulations applicable only to students with disabilities. Those provisions include the following:

• Annually identify and locate all children with disabilities who are unserved (Child Find).

• Establish procedures to evaluate and place students with disabilities.

• Provide a "free appropriate public education" to students with disabilities by providing regular or special education and related aids and services designed to meet the individual educational needs of students with disabilities as adequately as the needs of students without disabilities (FAPE).

• Ensure that students with disabilities are educated with students without disabilities to the maximum extent appropriate.

• Establish procedural safeguards concerning evaluation and placement of students with disabilities that includes notice to parents or guardian, an opportunity for the parents or guardian to examine relevant records, an impartial hearing with opportunity for participation by the person's parents or guardian and representation by counsel, and a review procedure. 

• Provide periodic reevaluations of students with disabilities.

• Afford students with disabilities an equal opportunity to participate in nonacademic and extra-curricular services and activities.

When conducting a self- evaluation those obligations should be included.

Public Postsecondary Schools

As with public elementary and secondary schools, public postsecondary schools have obligations specified in the U.S. Department of Education’s Section 504 regulations, in addition to the ADA Title II requirements, if the school receives federal financial assistance.  These requirements also apply to private postsecondary schools that receive federal financial assistance.  Subpart E of the Section 504 regulations is intended to ensure an equal educational opportunity for students with disabilities in postsecondary schools. Subpart E requires schools to make “academic adjustments” based on individual students’ disabilities and needs. Unlike in public K-12 schools, in the postsecondary setting it is students’ obligation to notify the school that they have a disability and need an academic adjustment. If it is not obvious that a student has a disability and/or needs the academic adjustment, schools may require that the student provide reasonable documentation indicating a current disability and need for the academic adjustment.

Academic adjustments may include:

• Modifications to academic requirements.

• Extended time for testing,

• Reducing a course load

• substituting one course for another

• Priority registration

• Note takers

• Recording devices

• Sign language interpreters

• Auxiliary aids and services

• Equipping school computers with screen-reading, voice recognition, or other adaptive software or hardware.

Postsecondary schools are not required to lower or substantially modify essential requirements. For example, a school may be required to provide extended testing time, but it is not required to change the substantive content of the test. Schools do not have to make adjustments that would be a fundamentally alteration to a course, activity or degree requirement; or that would result in an undue financial or administrative burden.  Unlike public elementary schools, postsecondary schools are not required to provide personal attendants, readers for personal use or study, or other devices or services of a personal nature, such as tutoring and typing.

Postsecondary schools are encouraged to develop reasonable procedures to request academic adjustments. Many schools include information on the procedures and contacts for requesting an academic adjustment in their recruitment material, catalogs, student handbooks, and on their websites. Many schools have disability services offices or a designated staff person whose purpose is to assist students with disabilities. When conducting a self-evaluation the procedures should be reviewed.

Administrative Requirements

Title II requires public entities to take several steps to become compliant with the ADA.

All public entities must:

• Conduct a self- evaluation.

• Provide public notice about the ADA.

Public entities with 50 or more employees are also required to:

• Designate an employee to oversee Title II compliance.

• Establish a grievance procedure.

• Develop a transition plan if structural changes are necessary for achieving program accessibility.

Many entities with fewer than 50 employees have found it helpful to designate an employee to coordinate ADA compliance even though it’s not required. Full-time and part-time employees are counted.

Required for All Public Entities

Self-evaluation

The self-evaluation is the key activity to determine what needs to be done to make sure the public entity is in compliance with the ADA and is providing an equal opportunity for people with disabilities to participate. 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.

To conduct a self-evaluation:

Identify all programs, activities, and services and their locations.

1. Survey facilities and determine whether there are physical barriers to access programs. If structural changes are needed, include them in the transition plan.

2. Determine whether employees and officials are familiar with the public entity’s ADA obligations.

3. Determine whether employees and officials know how to arrange for auxiliary aids and services, such as sign language interpreters, material in Braille and assistive listening systems; to ensure that communication with people with disabilities is as effective as others.

4. Review service, activity and program’s policies and procedures to determine whether they ensure an equal opportunity for people with disabilities to participate and benefit.

After the self-evaluation, determine what actions are needed to bring the public entity into compliance. The actions may require the public entity to: Add or change policies or procedures; purchase auxiliary aids, such as an assistive listening device; identify places to arrange for auxiliary services, such as sign language interpreters; and provide training for staff on ADA obligations and the public entity’s procedures for responding to requests and resolving complaints.

If structural changes to facilities are needed to ensure program access, such as adding a ramp to an entrance, installing Braille and raised character signage, or altering a toilet room, public entities with 50 or more employees must develop a transition plan (which will be addressed in item below.

Provide Public Notice About the ADA

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. Here are some methods that public entities have used over the last 25 plus years.

Methods

• Include the notice on the public entity’s website (make sure the site is accessible).

• 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 and activity handouts.

• Post the notice on Facebook.

• Disseminate the notice through other social media such as Twitter and Pinterest.

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

Examples of Alternative Formats

• Open or closed-captioned public service announcements on television

• Large print  (recommend: san-serif typeface such as Helvetica or Ariel, 18 point font

• Text file on a thumb disk or emailed to the person

• HTML format on an accessible website

• Radio announcements

Public entities must provide the information not just once, but on an ongoing basis. Changes to the notice should be made as necessary, for example when there’s a new ADA Coordinator.

Sample Notices (hyperlink to)

Information of Accessible Facilities and Programs

Public entities are also required to ensure that interested people, including people with vision or hearing impairments, can obtain information as to the existence and location of accessible services, activities, and facilities. This is an important but frequently overlooked part of the law.

Required for Public Entities with Fifty or more Employees

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.   Although the law does not refer to this person as an “ADA Coordinator,” this term is commonly used. A public may have more than one ADA Coordinator. Most states and many counties and municipalities have an overall ADA Coordinator and also have ADA Coordinators at the agency and department level.

There are many benefits to having an ADA coordinator.

When the public deals with state and local governments, they are able to identify a person who is familiar with the ADA and who can communicate the requirements to staff who may be less aware of ADA obligations.

Having an ADA Coordinator also benefits employees of public entities by providing a specific contact person with knowledge and information about the ADA. In addition, the person coordinates compliance efforts and is instrumental in ensuring that compliance plans move forward.

Job Functions

• Interact and consult with staff, boards and commission on the ADA.

• Develop and distribute notice about ADA compliance.

• Coordinate requests for auxiliary aids and services and reasonable modifications of policies, practices and procedures.

• Respond to general inquiries about the public entity and the ADA.

• Conduct a self-evaluation.

• Create a transition plan.

• Develop a grievance procedure.

• Investigate complaints.

• Train staff, boards and commissions on ADA requirements.

• Coordinate on going 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.

Job Qualifications

• Familiarity with the state or local government’s structure, activities, and employees.

• Knowledge of the ADA and other laws addressing the rights of people with disabilities, such as Section 504 of the Rehabilitation Act.

• Experience with people with a broad range of disabilities.

• Knowledge of various alternative formats and alternative technologies that enable people with disabilities to communicate, participate, and perform tasks.

• Ability to work cooperatively with the state or local government and people with disabilities.

• Skills in negotiation and mediation.

• Organizational and analytical skills.

Establish a Grievance Procedure

Public entities with fifty 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.

The Title II regulations do not specify the procedures for the grievance procedure. The public entity may use a grievance procedure that is already in place; there is no need to reinvent the wheel or duplicate existing procedures. If the organization does not already have a grievance procedure, one must be established.

This Action Guide recommends that a grievance procedure include the following:

• A detailed description of the procedures for submitting a grievance and the steps that will be taken by the public entity.

• Reasonable time frames for review and resolution of the grievance.

• A two-step review process that allows for appeal.

• Record-keeping for all complaints submitted and documentation of steps taken towards resolution.

Sample Grievance Procedures (hyperlink to)

Develop a Transition Plan

Public entities with 50 or more employees were required to develop a transition plan by July 26, 1992. Structural modifications required to achieve program accessibility were to be completed by January 26, 1995. That is a long time ago. 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 we now have accessibility standards for recreation areas such as swimming pools, play areas, exercise equipment, team seating, locker rooms and accessible routes to sports fields – including baseball, soccer and football fields.

To assure program accessibility, these recreation activities need to be surveyed using the current (2010) ADA Standards. Developing a transition plan is an efficient way to assure program accessibility at these areas.

A transition plan includes:

• A list of the physical barriers that limit the accessibility of programs, activities, or services.

• The methods to remove the barriers and make the facilities accessible.

• The schedule to get the work completed.

• The name of the official responsible for the plan's implementation.

Many public entities include cost estimates and which budget the funds will come from as part of their plan.

Where a public entity has responsibility or authority over streets, roads, or walkways, its transition plan must 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 ADA, including state and local government offices and facilities, transportation, places of public accommodation, and employers, followed by walkways serving other areas.

Enforcement

Many people’s complaints are resolved through the grievance procedure established by their state or local government. Some people prefer a more formal action. An individual can take the more formal action any time. Using the Title II entity’s grievance procedure is not required.

There are several ways that Title II is enforced.

• Complaints to the Department of Justice and other federal agencies

• Civil lawsuit

• Project Civic Access

A complaint may be filed with either --

• A federal agency that provides funding to the public entity that is the subject of the complaint;

• A federal agency designated in the Title II regulation to investigate Title II complaints; or

• The Department of Justice.

The designated federal agencies are as follows:

• Department of Agriculture

• Department of Education

• Department of Health and Human Services

• Department of Housing and Urban Development

• Department of Interior

• Department of Justice

• Department of Labor

• Department of Transportation

If a person files an administrative complaint, the appropriate federal agency will investigate. If the agency concludes that the public entity violated Title II, it will attempt to negotiate a settlement. If settlement efforts fail, the matter will be referred to the Department of Justice for a decision whether to institute litigation. In cases where the Title II entity receives federal financial assistance, assistance termination is an enforcement option.

A complaint must be filed within 180 days of the date of the alleged discrimination, unless the time for filing is extended by the federal agency.

Civil Lawsuits

An individual may go directly to court. Title II does not require complainants to go through the federal administrative process before suing. The complainant may recover attorney’s fees in addition to injunctive relief, if the person prevails. Injunctive relief is an equitable remedy in the form of a court order that compels a party to do or refrain from specific acts. Under Title II it could be ordering a public entity to provide a sign language interpreter for someone who is deaf or modifying a policy so that service animals are permitted in public buildings.

Compensatory damages (money) are available only if a plaintiff can prove that the discrimination by the public entity was intentional, which means conduct that results from deliberate indifference to the rights of the individual or actual malice. This is a high threshold to meet.

The prevailing party may also recover attorney’s fees at the court’s discretion.

Project Civic Access

The Department of Justice’s Project Civic Access is a wide-ranging effort to ensure that counties, cities, towns, and villages comply with the ADA. The Department has conducted comprehensive Title II reviews in 50 states, as well as Puerto Rico and the District of Columbia. Compliance review sites are chosen based upon the Department’s desire to visit every state, the population of the site, and, in some cases, its proximity to a university or tourist attraction. Some reviews were initiated in response to complaints and others were not. The settlement agreements are posted on the Department’s website at www.ada.gov. They provide a good overview of the Department of Justice’s expectations for public entities’ compliance with Title II.