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.
Examples
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A state may be violating the integration mandate if it contracts with segregated sheltered workshops to provide employment services for people with developmental disabilities who could participate in alternatives, like integrated supported employment with reasonable modifications.
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A school district may be violating the integration mandate if it automatically provides separate classes for students with disabilities and doesn’t consider whether an integrated setting might be more appropriate for a student with a disability.
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A county that contracts with segregated adult care homes for residential services for people with mental illness who could live in integrated settings like scattered-site, permanent supportive housing may be violating the integration mandate.
There are circumstances where it is appropriate for public entities to establish programs, services and activities that are specifically for people with disabilities.
Examples
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A county establishes a basketball league for people who use wheelchairs.
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A state runs an agency that provides rehabilitation and employment services for people with disabilities.
But public entities may not deny participation in “regular” programs, services and activities.
Examples
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A city parks and recreation department offers particular programs for people with disabilities, such as adaptive exercise and wheelchair basketball, in addition to other aerobics and sports activities. N.M has cerebral palsy. She cannot be excluded from an aerobics dance class because of the availability of an adaptive exercise class.
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."
Title II Regulation 28 § 35.130
General prohibitions against discrimination:
(d) A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.
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.
Examples
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A city adult education program requires people who are blind to be accompanied by another adult in its classes. This is discriminatory.
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A community college requires students with disabilities to provide extensive medical histories, although such histories are not required from other students. Unless the college can demonstrate that it is necessary for some compelling reason to adopt this policy, the policy would not be permitted by the ADA.
However, neutral rules such as legitimate safety qualifications are permitted even when the effect is to screen out people with disabilities.
Examples
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A certain level of vision is acceptable as an eligibility criterion for obtaining a driver's license.
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A county recreation program may require that all participants in its scuba program pass a swimming test, if it can demonstrate that being able to swim is necessary for safe participation in the class.
Title II Regulation 28 § 35.130
General prohibitions against discrimination:
(b) (8) A public entity shall not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.
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.
Examples
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A college may require all participants to pass a swim test in order to participate in the college-sponsored white water rafting expedition.
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A public entity may adopt "essential" requirements for safe operation of a motor vehicle. Denying a license to all individuals who have missing limbs, for example, would be discriminatory if an individual who could operate a vehicle safely without use of the missing limb were denied a license. A public entity, however, could impose appropriate restrictions as a condition to obtaining a license, such as requiring an individual who is unable to use foot controls to use hand controls when operating a vehicle.
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.
Title II Regulation 28 § 35.130
General prohibitions against discrimination:
(h) A public entity may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities. However, the public entity must ensure that its safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.
Separate Programs
Title II permits public entities to design programs that are specifically for people with disabilities.
Examples
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A state agency provides opportunities for people with developmental disabilities and their families to enhance independence, productivity, and inclusion.
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A state agency develops an employment training and placement program for people with intellectual disabilities.
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A county runs peer-focused drop-in centers where people with mental illness can socialize or hang out.
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.
Examples
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A city parks recreation department offers programs for people with disabilities such as adaptive exercise in addition to other activities. A person who has cerebral palsy cannot be excluded from an aerobics dance class because of the availability of the adaptive exercise class.
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A municipal museum offers a tour for people with vision impairments on which they touch specific sculptures. The museum cannot exclude a person who is blind from the standard museum tour.
Title II Regulation 28 § 35.130
General prohibitions against discrimination:
(a) 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. (b) (1) A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability — (iv) Provide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others;
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.”
Examples
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A state agency has a traumatic brain injury program. The eligibility requirements include a documented diagnosis of moderate to severe brain injury resulting in residual deficits and disability. This is permitted to establish eligibility.
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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 camp activities. The questionnaire is acceptable if the information is needed to ensure safe participation.
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.
Examples
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The accessible door adjacent to a revolving door must be kept unlocked.
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Snow must be removed from accessible parking spaces and accessible routes within a reasonable amount of time.
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The trashcan in an accessible toilet room must not be placed in the required clearances at the door and fixtures.
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.
Title II Regulations 28 § 35.133
Maintenance of accessible features:
(a) A public entity shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part. (b) This section does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs. (c) If the 2010 Standards reduce the technical requirements or the number of required accessible elements below the number required by the 1991 Standards, the technical requirements or the number of accessible elements in a facility subject to this part may be reduced in accordance with the requirements of the 2010 Standards.
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.
Examples
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L.O. wants to bring her father to the county museum. The father had a stroke, has a mobility disability and uses a walker. L.O. asks the museum if it provides wheelchairs. The museum staff says there are no wheelchairs. Although many museums provide wheelchairs, they are not required to under the ADA.
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A public school receives an application from a parent who would like to volunteer for field trips. The parent asks the school if it could provide assistance with using the restroom by helping the parent get on and off the toilet. The school district is not required to provide this assistance which is of a personal nature.
Title II Regulations 28 § 35.135
Personal devices and services:
This part does not require a public entity to provide to individuals with disabilities personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature including assistance in eating, toileting, or dressing.
Surcharges
Examples
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A county adult education program offers a bicycle repair course and charges participants $50. M.N., who is deaf, requests that a sign language interpreter be provided. The department plans to charge M.N. $250 for the course due to interpreter costs. M.N.’s fee can be no more than the $50 charged other participants.
Title II Regulation 28 § 35.130
General prohibitions against discrimination:
(f) A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.
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.
Examples
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The county agency that oversees the Morticians Licensing Act requires that morticians be physically mobile. Unless the agency can show that physical mobility is essential for the safe operation of the business, the requirement discriminates against potential morticians with mobility disabilities.
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A state prohibits the licensing of transportation companies that employ people with missing limbs as drivers. Many individuals who have missing limbs are "qualified" to perform the essential functions of the job, because they are able to drive safely with hand controls. The State's licensing requirements violate Title II.
Title II Regulation 28 § 35.130
General prohibitions against discrimination:
(b)(6) A public entity may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a public entity establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. The programs or activities of entities that are licensed or certified by a public entity are not, themselves, covered by this part.
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.
Title II Regulations 28 § 35.138
Ticketing:
(a) (1) For the purposes of this section, “accessible seating” is defined as wheelchair spaces and companion seats that comply with sections 221 and 802 of the 2010 Standards along with any other seats required to be offered for sale to the individual with a disability pursuant to paragraph (d) of this section. (2) Ticket sales. A public entity that sells tickets for a single event or series of events shall modify its policies, practices, or procedures to ensure that individuals with disabilities have an equal opportunity to purchase tickets for accessible seating— (i) During the same hours; (ii) During the same stages of ticket sales, including, but not limited to, pre-sales, promotions, lotteries, wait-lists, and general sales; (iii) Through the same methods of distribution; (iv) In the same types and numbers of ticketing sales outlets, including telephone service, in-person ticket sales at the facility, or third-party ticketing services, as other patrons; and (v) Under the same terms and conditions as other tickets sold for the same event or series of events.
(b) Identification of available accessible seating. A public entity that sells or distributes tickets for a single event or series of events shall, upon inquiry—(1) Inform individuals with disabilities, their companions, and third parties purchasing tickets for accessible seating on behalf of individuals with disabilities of the locations of all unsold or otherwise available accessible seating for any ticketed event or events at the facility; (2) Identify and describe the features of available accessible seating in enough detail to reasonably permit an individual with a disability to assess independently whether a given accessible seating location meets his or her accessibility needs; and (3) Provide materials, such as seating maps, plans, brochures, pricing charts, or other information, that identify accessible seating and information relevant thereto with the same text or visual representations as other seats, if such materials are provided to the general public.
(c) Ticket prices. The price of tickets for accessible seating for a single event or series of events shall not be set higher than the price for other tickets in the same seating section for the same event or series of events. Tickets for accessible seating must be made available at all price levels for every event or series of events. If tickets for accessible seating at a particular price level are not available because of inaccessible features, then the percentage of tickets for accessible seating that should have been available at that price level (determined by the ratio of the total number of tickets at that price level to the total number of tickets in the assembly area) shall be offered for purchase, at that price level, in a nearby or similar accessible location.
(d) Purchasing multiple tickets. (1) General. For each ticket for a wheelchair space purchased by an individual with a disability or a third-party purchasing such a ticket at his or her request, a public entity shall make available for purchase three additional tickets for seats in the same row that are contiguous with the wheelchair space, provided that at the time of purchase there are three such seats available. A public entity is not required to provide more than three contiguous seats for each wheelchair space. Such seats may include wheelchair spaces. (2) Insufficient additional contiguous seats available. If patrons are allowed to purchase at least four tickets, and there are fewer than three such additional contiguous seat tickets available for purchase, a public entity shall offer the next highest number of such seat tickets available for purchase and shall make up the difference by offering tickets for sale for seats that are as close as possible to the accessible seats. (3) Sales limited to less than four tickets. If a public entity limits sales of tickets to fewer than four seats per patron, then the public entity is only obligated to offer as many seats to patrons with disabilities, including the ticket for the wheelchair space, as it would offer to patrons without disabilities. (4) Maximum number of tickets patrons may purchase exceeds four. If patrons are allowed to purchase more than four tickets, a public entity shall allow patrons with disabilities to purchase up to the same number of tickets, including the ticket for the wheelchair space. (5) Group sales. If a group includes one or more individuals who need to use accessible seating because of a mobility disability or because their disability requires the use of the accessible features that are provided in accessible seating, the group shall be placed in a seating area with accessible seating so that, if possible, the group can sit together. If it is necessary to divide the group, it should be divided so that the individuals in the group who use wheelchairs are not isolated from their group.
(e) Hold-and-release of tickets for accessible seating. (1) Tickets for accessible seating may be released for sale in certain limited circumstances. A public entity may release unsold tickets for accessible seating for sale to individuals without disabilities for their own use for a single event or series of events only under the following circumstances— (i) When all non-accessible tickets (excluding luxury boxes, club boxes, or suites) have been sold; (ii) When all non-accessible tickets in a designated seating area have been sold and the tickets for accessible seating are being released in the same designated area; or (iii) When all non-accessible tickets in a designated price category have been sold and the tickets for accessible seating are being released within the same designated price category. (2) No requirement to release accessible tickets. Nothing in this paragraph requires a facility to release tickets for accessible seating to individuals without disabilities for their own use. (3) Release of series-of-events tickets on a series-of-events basis. (i) Series-of-events tickets sell-out when no ownership rights are attached. When series-of-events tickets are sold out and a public entity releases and sells accessible seating to individuals without disabilities for a series of events, the public entity shall establish a process that prevents the automatic reassignment of the accessible seating to such ticket holders for future seasons, future years, or future series so that individuals with disabilities who require the features of accessible seating and who become newly eligible to purchase tickets when these series-of-events tickets are available for purchase have an opportunity to do so. (ii) Series-of-events tickets when ownership rights are attached. When series-of-events tickets with an ownership right in accessible seating areas are forfeited or otherwise returned to a public entity, the public entity shall make reasonable modifications in its policies, practices, or procedures to afford individuals with mobility disabilities or individuals with disabilities that require the features of accessible seating an opportunity to purchase such tickets in accessible seating areas.
(f) Ticket transfer. Individuals with disabilities who hold tickets for accessible seating shall be permitted to transfer tickets to third parties under the same terms and conditions and to the same extent as other spectators holding the same type of tickets, whether they are for a single event or series of events.
(g) Secondary ticket market. (1) A public entity shall modify its policies, practices, or procedures to ensure that an individual with a disability may use a ticket acquired in the secondary ticket market under the same terms and conditions as other individuals who hold a ticket acquired in the secondary ticket market for the same event or series of events. (2) If an individual with a disability acquires a ticket or series of tickets to an inaccessible seat through the secondary market, a public entity shall make reasonable modifications to its policies, practices, or procedures to allow the individual to exchange his ticket for one to an accessible seat in a comparable location if accessible seating is vacant at the time the individual presents the ticket to the public entity.
(h) Prevention of fraud in purchase of tickets for accessible seating. A public entity may not require proof of disability, including, for example, a doctor's note, before selling tickets for accessible seating. (1) Single-event tickets. For the sale of single-event tickets, it is permissible to inquire whether the individual purchasing the tickets for accessible seating has a mobility disability or a disability that requires the use of the accessible features that are provided in accessible seating, or is purchasing the tickets for an individual who has a mobility disability or a disability that requires the use of the accessible features that are provided in the accessible seating. (2) Series-of-events tickets. For series-of-events tickets, it is permissible to ask the individual purchasing the tickets for accessible seating to attest in writing that the accessible seating is for a person who has a mobility disability or a disability that requires the use of the accessible features that are provided in the accessible seating. (3) Investigation of fraud. A public entity may investigate the potential misuse of accessible seating where there is good cause to believe that such seating has been purchased fraudulently.
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.
Examples
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A county auditorium does not allow people to bring food into its theater. The county may need to make an exception for a person who has diabetes and needs to eat frequently to control her glucose level.
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A municipal zoning ordinance requires a set-back of 12 feet from the curb in residential areas. A young man who was recently injured and will permanently use a wheelchair needs to install a ramp to the entrance of his house. The ramp will encroach on the set-back by three feet. Granting a variance in the zoning requirement may be a reasonable modification of the town ordinance.
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A person who uses a walker has difficulty waiting in line to vote. Election officials must permit the person to sit and note where he is in line, so he doesn't lose his place. The officials might also allow the person to move to the front of the line, but moving ahead is not required under the ADA.
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A city program provides emergency food and shelter. The application process is complex. The county does not usually help people with the process but a person who has an intellectual or cognitive disability may need assistance completing the application.
Title II Regulation 28 § 35.130
General prohibitions against discrimination:
(b) (7) (i) 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.
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:
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type, size, weight, dimensions, and speed of the device;
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volume of pedestrian traffic (which may vary at different times of the day, week, month, or year);
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the facility's design and operational characteristics;
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whether legitimate safety requirements can be established to permit the safe operation of the OPDMD; and
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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.
Title II Regulations 28 § 35.137
Mobility devices:
(a) Use of wheelchairs and manually-powered mobility aids. A public entity shall permit individuals with mobility disabilities to use wheelchairs and manually-powered mobility aids, such as walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabilities in any areas open to pedestrian use.
(b) (1) Use of other power-driven mobility devices. A public entity shall make reasonable modifications in its policies, practices, or procedures to permit the use of other power-driven mobility devices by individuals with mobility disabilities, unless the public entity can demonstrate that the class of other power-driven mobility devices cannot be operated in accordance with legitimate safety requirements that the public entity has adopted pursuant to § 35.130(h).
(2) Assessment factors. In determining whether a particular other power-driven mobility device can be allowed in a specific facility as a reasonable modification under paragraph (b)(1) of this section, a public entity shall consider— (i) The type, size, weight, dimensions, and speed of the device; (ii) The facility's volume of pedestrian traffic (which may vary at different times of the day, week, month, or year); (iii) The facility's design and operational characteristics (e.g., whether its service, program, or activity is conducted indoors, its square footage, the density and placement of stationary devices, and the availability of storage for the device, if requested by the user); (iv) Whether legitimate safety requirements can be established to permit the safe operation of the other power-driven mobility device in the specific facility; and (v) Whether the use of the other power-driven mobility device creates a substantial risk of serious harm to the immediate environment or natural or cultural resources, or poses a conflict with Federal land management laws and regulations. (c) (1) Inquiry about disability. A public entity shall not ask an individual using a wheelchair or other power-driven mobility device questions about the nature and extent of the individual's disability (2) Inquiry into use of other power-driven mobility device. A public entity may ask a person using an other power-driven mobility device to provide a credible assurance that the mobility device is required because of the person's disability. A public entity that permits the use of an other power-driven mobility device by an individual with a mobility disability shall accept the presentation of a valid, State-issued, disability parking placard or card, or other State-issued proof of disability as a credible assurance that the use of the other power-driven mobility device is for the individual's mobility disability. In lieu of a valid, State-issued disability parking placard or card, or State-issued proof of disability, a public entity shall accept as a credible assurance a verbal representation, not contradicted by observable fact, that the other power-driven mobility device is being used for a mobility disability. A “valid” disability placard or card is one that is presented by the individual to whom it was issued and is otherwise in compliance with the State of issuance’s requirements for disability placards or cards.
Service Animals
One of the most common, confusing and contentious requests for reasonable modifications of policies, practices, or procedures concerns service animals.
Title II Regulations 28 § 35.104
Service Animal Definition:
Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.
Many people with disabilities use a service animal to fully participate in everyday life. Dogs can be trained to perform tasks such as:
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Guiding a person who is blind.
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Providing stability for a person who has difficulty walking.
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Alerting a person who has hearing loss when someone is approaching from behind.
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Picking up items for a person who uses a wheelchair.
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Preventing a child with autism from wandering away.
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Alerting and protecting a person who is having a seizure.
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Reminding a person with mental illness to take prescribed medications.
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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:
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Is the dog a service animal required because of a disability?
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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.
Examples
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In a state hospital a service animal must be allowed to accompany a person with a disability in patient rooms or examination rooms. However, the hospital may exclude the animal from operating rooms where the animal would compromise a sterile environment.
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A city zoo has animals that are natural predators of dogs. If the dog’s presence would be disruptive, the city does not have to permit the service animal because its presence would fundamentally alter the nature of the program.
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.
Title II Regulations 28 § 35.136
Service animals:
(a) General. Generally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.
(b) Exceptions. A public entity may ask an individual with a disability to remove a service animal from the premises if— (1) The animal is out of control and the animal's handler does not take effective action to control it; or (2) The animal is not housebroken. (c) If an animal is properly excluded. If a public entity properly excludes a service animal under § 35.136(b), it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises. (d) Animal under handler's control. A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control (e.g., voice control, signals, or other effective means). (e) Care or supervision. A public entity is not responsible for the care or supervision of a service animal. (f) Inquiries. A public entity shall not ask about the nature or extent of a person's disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public entity may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public entity shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public entity may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (e.g., the dog is observed guiding an individual who is blind or has low vision, pulling a person's wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).
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:
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The miniature horse is housebroken.
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The miniature horse is under the owner’s control.
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The facility can accommodate the miniature horse’s type, size, and weight.
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The miniature horse does not compromises legitimate, necessary safety requirements.
Title II Regulations 28 § 35.136
Service animals Miniature horses:
(1) Reasonable modifications. A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.
(2) Assessment factors. In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public entity shall consider— (i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features; (ii) Whether the handler has sufficient control of the miniature horse; (iii) Whether the miniature horse is housebroken; and (iv) Whether the miniature horse's presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
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