ADA Title II Action Guide for State and Local Governments

FAQs

What is the definition of disability?

The ADA protects the rights of people who have a physical or mental impairment that substantially limits one or more major life activities, such as breathing, walking, hearing and thinking, Major bodily functions, such as normal cell growth and endocrine function are also considered major life activities. Therefore cancer and diabetes will, in virtually all cases, be considered disabilities. The ADA also applies to people who have a record of having a substantially limiting impairment, such as a person with cancer that is in remission, or are regarded as having an impairment, such as a person who has facial scars.

What is the difference between Title II and Title III of the ADA?

Title II applies to state and local governments. Title III applies to the private sector such as businesses and non-profit organizations. Both titles require general non-discrimination, effective communication and accessible new construction and alterations. The major difference between the two titles is that Title II has administrative requirements for an ADA coordinator, self-evaluation, transition plan, grievance procedure and public notice; and Title III does not. The other big difference concerns facility and program accessibility. State and local governments must make sure that people with disabilities can participate in all programs, activities and services. People may not be denied participation because of inaccessible facilities. Title III entities are not required to ensure participation, but facilities must be made accessible when it’s “readily achievable” to do so. Readily achievable means “without much difficulty or expense.”

Under what circumstances in non-employment situations, may a public entity require documentation of a disability or information about a person’s medical condition?

A public entity may make inquiries about disability when they are necessary. For example, a municipal recreation department summer camp requires parents to fill out a questionnaire and to submit medical documentation regarding their children's ability to participate in various camp activities. The questionnaire is acceptable, if the information is needed to ensure safe participation. Unnecessary inquiries are not permitted.

Do all state and local buildings need to be accessible (comply with the ADA Standards for Accessible Design?)

Not necessarily. New construction and alterations need to meet the Standards, but for facilities built before the ADA went into effect on January 26, 1992, the focus is on making sure people with disabilities have equal access to programs, services and activities. Sometimes this can be accomplished through non-structural methods. In a two story town hall built in 1968 that doesn’t have an elevator, staff on the second floor could meet with citizens on the first floor if meeting space is comparable to that on the second floor in terms of privacy, comfort, etc.

Are state and local government websites required to be accessible?

The Department of Justice considers websites to be an integral aspect of how Title II entities interact with their citizens and the public and therefore they need to be accessible. Until we have ADA Standards for accessible information technology, the Department recommends compliance with the W3C Web Content Accessibility Guidelines 2.0.

What questions can a public entity ask to determine if a dog is a service animal?

In situations where it is not obvious that a dog is a service animal, a public entity may ask two questions: (1) is the dog a service animal required because of a disability? and (2) what work or task has the dog been trained to perform? Staff may not request documentation of training for the dog, require that the dog demonstrate its task, or inquire about the nature of the person's disability.

May a family member be used to provide sign language interpretation for a person who is deaf?

Generally a public entity must provide an objective, qualified interpreter. However, a family member could be used in an emergency involving an imminent safety threat or where the person who is deaf requests that a family member interpret and using the family member is appropriate under the circumstances.

Do all print materials need to be available in large print and Braille or are they only required upon request?

The ADA Title II regulations do not get to this level of detail. Public entities are required to “make available appropriate auxiliary aids and services where necessary to ensure effective communication.” Notifying the public of how to request auxiliary aids and services, such as large print, is usually sufficient.

Are all play areas required to be upgraded to the design specifications in the 2010 ADA Standards for Accessible Design?

Not all play areas must be upgraded to be accessible, but enough playgrounds must be upgraded to ensure that children with disabilities have an equal opportunity to participate. This is the program accessibility standard: “A public entity may not deny the benefits of its programs, activities, and services to individuals with disabilities because its facilities are inaccessible. State and local governments should consider where the playgrounds are located, whether there are unique features in play areas and whether they are intended for different age groups when they are determining which ones to make accessible.

Can back doors and freight elevators be used to satisfy the program accessibility requirement?

Only as a last resort and only if such an arrangement provides accessibility comparable to that provided to people without disabilities, who generally use front doors and passenger elevators. For example, a back door is acceptable if it is kept unlocked during the same hours the front door remains unlocked; the passageway to and from the floor is accessible, well-lit, and neat and clean; and the individual with a mobility impairment does not have to travel excessive distances or through nonpublic areas such as kitchens and storerooms to gain access. A freight elevator would be acceptable if it were upgraded so as to be usable by passengers generally and if the passageways leading to and from the elevator are well-lit and neat and clean.

Are self-evaluations and transition plans required to be updated?

As many people know, the self-evaluation was supposed to be conducted and the transition plan developed in the late part of the 20th century (1992-3). That’s a long time ago. Although there is no requirement to update them, updating is the best means to ensure compliance with current regulations and design standards. A lot has changed in 27 years. The current (2010) ADA Standards have design requirements for swimming pools, play areas, fishing piers, golf courses, accessible routes to ball fields and more. The current ADA Title II regulations address service animals as only dogs, miniature horses, ticketing policies, video-remote interpreting and other power-driven mobility devices. Public entities must make sure they are in compliance with the current reguations. [sic]

How is Title II of the ADA enforced?

Title II is enforced by private lawsuit or by filing a complaint with the Department of Justice or one of the designated federal enforcement agencies, such as the Department of Education, the Department of the Interior and the Department of Transportation, to name a few, the full list is in the enforcement section of ADA Title II Requirements.