ADA Title II Requirements
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 --
- Whether the entity is operated with public funds;
- Whether the entity's employees are considered government employees;
- Whether the entity receives significant assistance from the government by provision of property or equipment; and
- 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.
Public entity means:
(1) Any State or local government; (2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (3) The National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act).
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:
- has a physical or mental impairment that substantially limits one or more major life activities; or
- has a history or record of a physical or mental impairment that substantially limited one or more major life activities; or
- 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.
Examples
- A.Z. has cerebral palsy and is able to walk a mile in an hour. Most people can walk a mile in 20 – 30 minutes.
- B.Y. has diabetes. Diabetes substantially limits the functioning of the endocrine system, which is a major life activity.
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.
Examples
- C.X . has substantial hearing loss but is able to hear when using a hearing aid.
- D.W. had a leg amputated and uses a prosthetic leg to walk.
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.
Examples
- G.T. had cancer eight years ago and has been cancer free for six years.
- At age 8 H.S. was misclassified as having an intellectual disability (formerly termed “mental retardation”) H.S. is protected from discrimination on the basis of that erroneous classification.
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.
Examples
- A town recreation department refuses to admit a child with burn scars to a summer camp because the department is concerned about other children’s reactions. The department has regarded the child as person with a disability, regardless of whether the child’s scars substantially limit a major life activity.
- H.S. is excluded from a county senior center because the staff have heard that H.S. is infected with the Ebola virus. H.S. is not infected with the Ebola virus.
These people are protected under the third part of the definition.
Definition of disability:
(1) Disability means, with respect to an individual: (i) A physical or mental impairment that substantially limits one or more of the major life activities of such individual; (ii) A record of such an impairment; or (iii) Being regarded as having such an impairment as described in paragraph (f) of this section.
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.
Definition of disability:
(g) Exclusions. The term “disability” does not include— (3) Psychoactive substance use disorders resulting from current illegal use of drugs.
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.
- 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.
- 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.
Example
- A state agency organizes a job placement event for young adults ages 18-21. I.R. is 25 and is hard of hearing. I.R. wants to attend, but I.R. does not meet the essential eligibility criteria concerning age.
Definitions:
Qualified individual with a disability means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
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.
Examples
- A state agency organizes a job placement event for young adults ages 18-21. I.R. is 25 and is hard of hearing. I.R. wants to attend, but I.R. does not meet the essential eligibility criteria concerning age.
- A parent with tuberculosis wants to tutor 6th grade students in a public school volunteer program. Title II permits the school to refuse to allow the parent to participate on the grounds that the person's condition would be a direct threat to the health or safety of the students, if the condition is contagious and the threat cannot be mitigated or eliminated by reasonable modifications in policies, practices, or procedures.
General prohibitions against discrimination:
(g) A public entity shall not exclude or otherwise deny equal services, programs, or activities to an individual or entity because of the known disability of an individual with whom the individual or entity is known to have a relationship or association.
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.
Examples
- A school district does not permit students with Autism Spectrum Disorder to participate in field trips.
- county museum requires people who are blind to be accompanied by a companion.
- A public health clinic requires patients with mental illness to come for check-ups after all other patients have been seen, based on an assumption that these patients’ behavior will be disturbing to other patients.
And sometimes policies and practices appear neutral but have a discriminatory effect.
Examples
- A policy requiring a driver's license as proof of age for participation in a community college adult education program has the effect of discriminating against people who are unable to obtain a driver's license because of their disability. Other forms of proof must be accepted.
Equal treatment is a fundamental purpose of the ADA. People with disabilities must not be treated in a different or inferior manner.
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.
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 privatized. 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.
Examples
- A county mental health agency contracts with a private entity to run community-based services for people with mental illness. The state agency must ensure that the private entity does not discriminate against people with disabilities and complies with the agency’s Title II obligations.
- A state lottery contracts with convenience stores to sell state lottery tickets. The state lottery has an obligation to ensure that stores are accessible to people with disabilities, including people who use wheelchairs.
General prohibitions against discrimination:
(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—
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
- 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.
- 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.
- 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
- A county establishes a basketball league for people who use wheelchairs.
- 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
- 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."
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
- A city adult education program requires people who are blind to be accompanied by another adult in its classes. This is discriminatory.
- 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
- A certain level of vision is acceptable as an eligibility criterion for obtaining a driver's license.
- 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.
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
- A college may require all participants to pass a swim test in order to participate in the college-sponsored white water rafting expedition.
- 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.
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
- A state agency provides opportunities for people with developmental disabilities and their families to enhance independence, productivity, and inclusion.
- A state agency develops an employment training and placement program for people with intellectual disabilities.
- 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
- 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.
- 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.
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
- 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.
- 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
- The accessible door adjacent to a revolving door must be kept unlocked.
- Snow must be removed from accessible parking spaces and accessible routes within a reasonable amount of time.
- 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.
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
- 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.
- 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.
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
- 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.
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
- 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.
- 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.
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.
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
- 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.
- 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.
- 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.
- 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.
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:
- 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.
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.
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:
- 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:
- Is the dog a service animal required because of a disability?
- 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
- 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.
- 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.
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:
- The miniature horse is housebroken.
- The miniature horse is under the owner’s control.
- The facility can accommodate the miniature horse’s type, size, and weight.
- The miniature horse does not compromises legitimate, necessary safety requirements.
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.
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.
Example
- N.M. has cerebral palsy. His speech is understandable but is slurred, slow and halting. He comes to a city council meeting on a proposed property tax ordinance. Staff and county officials must take the time to listen to N.M, not interrupt him or finish his sentences.
General:
(a) (1) A public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.
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.
Examples
- O.L. is deaf and needs to renew a driver’s license. At the registry of motor vehicles, written notes, texting or typing at a computer, will generally be fine for this situation.
- Now O.L. attends a hearing to resolve denial of services from a state vocational rehabilitation agency. Qualified sign language interpreters or real-time computer-aided transcription services (depending on O.L.’s request) will probably be needed to ensure effective communication.
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 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.
Communications General:
(b) (1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity. (2) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.
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.
Examples
- A county medical clinic has a patient whose spouse is deaf. The spouse’s preferred means of communication is American Sign Language. To the extent the clinic communicates with spouses, it may need to provide a sign language interpreter to ensure that communication with the spouse is as effective as communication with other spouses.
- A public school informs parents about field trips by sending print notices home with the students. A parent who is blind may need the information emailed to her so that she can use her screen reading software.
General:
(a) (2) For purposes of this section, “companion” means a family member, friend, or associate of an individual seeking access to a service, program, or activity of a public entity, who, along with such individual, is an appropriate person with whom the public entity should communicate
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.
- 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.
- 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.
General:
(1) A public entity shall not require an individual with a disability to bring another individual to interpret for him or her. (2) A public entity shall not rely on an adult accompanying an individual with a disability to interpret or facilitate communication except— (i) In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or (ii) Where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances. (3) A public entity shall not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.
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.
Duties:
This subpart does not require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with this subpart would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of the public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this subpart would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits or services provided by the public entity.
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.
Examples
- A state consumer affairs agency has toll-free telephone assistance on identity theft. The agency will be in compliance with the ADA if it provides telephone assistance to people who call using the telecommunication relay service
Telecommunications
(a) Where a public entity communicates by telephone with applicants and beneficiaries, text telephones (TTYs) or equally effective telecommunications systems shall be used to communicate with individuals who are deaf or hard of hearing or have speech impairments. (b) When a public entity uses an automated-attendant system, including, but not limited to, voice mail and messaging, or an interactive voice response system, for receiving and directing incoming telephone calls, that system must provide effective real-time communication with individuals using auxiliary aids and services, including TTYs and all forms of FCC-approved telecommunications relay system, including Internet-based relay systems. (c) A public entity shall respond to telephone calls from a telecommunications relay service established under Title IV of the ADA in the same manner that it responds to other telephone calls.
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.
Examples
- A county emergency medical department provides prehospital emergency medical care to people who are sick or injured. The department cannot rely on the telecommunication relay service; it must promptly receive and respond to a direct call from people with disabilities who use TTYs or computer modems.
Telephone emergency services
Telephone emergency services, including 911 services, shall provide direct access to individuals who use TDD's and computer modems.
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.
|
Compliance Date for New Construction or Alterations |
Applicable Standards |
|---|---|
|
Before September 15, 2010 |
1991 ADA Standards for Accessible Design or Uniform Federal Accessibility Standards |
|
On or after September 15, 2010, and before March 15, 2012 |
1991 ADA Standards, Uniform Federal Accessibility Standards, or 2010 ADA Standards |
|
On or after March 15, 2012 |
2010 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.
Examples
- There is no section in the ADA Standards called “Science Lab,” however a science lab in a school must be accessible. Designers should use the Chapter 3 building blocks that address reach ranges, knee and toe clearance, clear floor space, protruding objects and operable parts when designing the space.
All areas must comply unless specifically exempted in the Standards or where scoping limits the number of multiple elements required to be accessible.
Examples
- Single occupant structures accessed only by passageways below grade or elevated above standard curb height, such as toll booths that are accessed only by underground tunnels, are not required to comply with the requirements or to be on an accessible route.
- If single user toilet rooms of the same type are clustered, only 50% of the rooms are required to be accessible.
- In buildings and facilities 60% of entrances need to be accessible. If there are three or more entrances, an inaccessible entrance is permitted.
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.
Examples
- A public college is spending $45,000 on alterations to a cafeteria. The building has an accessible entrance and an accessible route to this area. The toilet rooms that serve the area are not accessible. The cost of altering a single user accessible toilet room is $11,000. Twenty percent of $45,000 is $9,000. Thus the cost to make the toilet rooms accessible is disproportionate to the overall cost of the alterations. The next year the school spends $50,000 on alterations to the auditorium. Since this toilet room serves the auditorium as well as the cafeteria, and the cost is no longer disproportionate, the toilet room needs to be made accessible.
- The maps room on the second floor of a public library is undergoing a $30,000 alteration. The building has an accessible entrance and elevator. Because the maps room is in an old addition, there are four steps between the elevator and the room. Installing a ramp is technically infeasible. Because of limited space the slope would be 1:6. A platform lift would cost $10,000 which is greater than 20% of $30,000 ($6,000.) Plus the lift would block emergency egress regulations. Thus providing an accessible route to the maps room is not required. The library still has a program accessibility obligation, but it doesn’t necessarily have to include a structural change to the building, such as adding a lift. There could be a database of maps. Staff could take maps to a room in an access location upon request.
New construction and alterations:
(iii) Disproportionality. (A) Alterations made to provide an accessible path of travel to the altered area will be deemed disproportionate to the overall alteration when the cost exceeds 20% of the cost of the alteration to the primary function area.
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.
Examples
- A town owns an historic house. Alterations are planned so it can be used as a museum. The architect concludes that most of the ADA Standards for alterations can be applied; however, there appears to be a problem, if one of the interior doors is widened historic decorative features on the door might be destroyed. The architect holds a meeting with the State Historic Preservation Officer, a local disability group and the ADA Coordinator. The participants agree that the ADA Standards cannot be applied to the interior door. The town provides access to the program offered in that room through a video presentation of the items within the inaccessible room. The video can be viewed in a nearby accessible room in the museum.
Existing facilities:
(a) General. A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not— (2) Require a public entity to take any action that would threaten or destroy the historic significance of an historic property
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.
Discrimination prohibited:
Except as otherwise provided in § 35.150, no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.
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.
Examples
- A legislator’s local office is on the second floor of a building that doesn’t have an elevator. The legislator can meet a person with a disability at another accessible location.
- A town holds its annual town meeting in an inaccessible location, the second floor of the town hall that has no elevator. The town council considers installing an elevator, but determines it’s too costly. Instead, the town holds the town meetings, as well as other public meetings where large numbers of the public are expected to attend, in the high school auditorium. The officials move smaller meetings, which are held on the second floor of the town hall, to the auditorium, when they receive a request within 24 hours of a meeting.
People with disabilities must have comparable access to programs and services.
Examples
- A community college counselor meets with students in a private office on the third floor of a building without an elevator. The alternate accessible location must provide the same degree of privacy. The cafeteria on the first floor is not acceptable.
- A city department of health holds classes for parents on surviving adolescence. Group interaction is an essential aspect of the class. If the class is in an inaccessible facility, it is not acceptable to provide a one-on-one class for a person with a mobility disability as a method to assure program accessibility.
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.
Examples
- A school district has six elementary schools. Four are accessible and two are not accessible. All programs in the inaccessible school are provided at the accessible schools. The travel time from the homes of people with disabilities to the accessible schools is comparable to the travel time of people without disabilities to the inaccessible schools. The school district has provided program accessibility.
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.
Existing facilities:
(b) Methods. (1) General. A public entity may comply with the requirements of this section through such means as redesign or acquisition of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. A public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. A public entity, in making alterations to existing buildings, shall meet the accessibility requirements of § 35.151. In choosing among available methods for meeting the requirements of this section, a public entity shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate.
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.
Examples
- The 1991 Standards required one van-accessible space for every eight accessible spaces. The 2010 Standards require one van-accessible space for every six accessible spaces.
- The 2010 Standards for assembly areas contain revised requirements for dispersion of accessible seating, sightlines over standing spectators, and companion seating.
- The 2010 Standards reduced scoping requirements for accessible seating in large assembly areas.
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.”
Examples
- A public university library built in 1998 has light switches at 53 inches above the floor. The 1991 Standards permitted controls to be 54 inches maximum above the floor. The 2010 Standards specify controls to be 48 inches maximum above the floor. The university does not have to lower the light switches. Safe harbor status applies. If the university alters or replaces the light switches they will need to be 48 inches maximum above the floor.
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.
- Team or player seating
- Accessible route to bowling lanes, section
- 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.
Examples
- A municipal recreation department has one swimming pool. The 2010 ADA Standards require that pools have either a sloped entry or an independently operable lift. The municipality needs to provide either a sloped entry or an independently operable lift to make sure that its swimming program is accessible.
- A state Department of Parks has twenty fishing piers scattered around the state. Fishing piers in various locations must be made accessible to ensure program accessibility.
Existing facilities:
(b) (2) (i) Safe harbor. Elements that have not been altered in existing facilities on or after March 15, 2012, and that comply with the corresponding technical and scoping specifications for those elements in either the 1991 Standards or in the Uniform Federal Accessibility Standards (UFAS), Appendix A to 41 CFR part 101–19.6 (July 1, 2002 ed.), 49 FR 31528, app. A (Aug. 7, 1984) are not required to be modified in order to comply with the requirements set forth in the 2010 Standards. (ii) The safe harbor provided in § 35.150(b)(2)(i) does not apply to those elements in existing facilities that are subject to supplemental requirements (i.e., elements for which there are neither technical nor scoping specifications in the 1991 Standards). Elements in the 2010 Standards not eligible for the element-by-element safe harbor are identified as follows––(lists the recreation elements and residential facilities.)
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.
Existing facilities:
(a) ... This paragraph does not- (3) Require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with §35.150(a) of this part would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, a public entity shall 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 or services provided by the public entity.
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.
§104.31 Application of this subpart:
Subpart D applies to preschool, elementary, secondary, and adult education programs or activities that receive Federal financial assistance and to recipients that operate, or that receive Federal financial assistance for the operation of, such programs or activities.
§104.32 Location and notification. A recipient that operates a public elementary or secondary education program or activity shall annually:
(a) Undertake to identify and locate every qualified handicapped person residing in the recipient's jurisdiction who is not receiving a public education; and (b) Take appropriate steps to notify handicapped persons and their parents or guardians of the recipient's duty under this subpart.
§104.33 Free appropriate public education:
(a) General. A recipient that operates a public elementary or secondary education program or activity shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap.
(b) Appropriate education. (1) For the purpose of this subpart, the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of §§104.34, 104.35, and 104.36.
(2) Implementation of an Individualized Education Program developed in accordance with the Education of the Handicapped Act is one means of meeting the standard established in paragraph (b)(1)(i) of this section.
(3) A recipient may place a handicapped person or refer such a person for aid, benefits, or services other than those that it operates or provides as its means of carrying out the requirements of this subpart. If so, the recipient remains responsible for ensuring that the requirements of this subpart are met with respect to any handicapped person so placed or referred.
(c) Free education—(1) General. For the purpose of this section, the provision of a free education is the provision of educational and related services without cost to the handicapped person or to his or her parents or guardian, except for those fees that are imposed on non-handicapped persons or their parents or guardian. It may consist either of the provision of free services or, if a recipient places a handicapped person or refers such person for aid, benefits, or services not operated or provided by the recipient as its means of carrying out the requirements of this subpart, of payment for the costs of the aid, benefits, or services. Funds available from any public or private agency may be used to meet the requirements of this subpart. Nothing in this section shall be construed to relieve an insurer or similar third party from an otherwise valid obligation to provide or pay for services provided to a handicapped person.
(2) Transportation. If a recipient places a handicapped person or refers such person for aid, benefits, or services not operated or provided by the recipient as its means of carrying out the requirements of this subpart, the recipient shall ensure that adequate transportation to and from the aid, benefits, or services is provided at no greater cost than would be incurred by the person or his or her parents or guardian if the person were placed in the aid, benefits, or services operated by the recipient.
(3) Residential placement. If a public or private residential placement is necessary to provide a free appropriate public education to a handicapped person because of his or her handicap, the placement, including non-medical care and room and board, shall be provided at no cost to the person or his or her parents or guardian.
(4) Placement of handicapped persons by parents. If a recipient has made available, in conformance with the requirements of this section and §104.34, a free appropriate public education to a handicapped person and the person's parents or guardian choose to place the person in a private school, the recipient is not required to pay for the person's education in the private school. Disagreements between a parent or guardian and a recipient regarding whether the recipient has made a free appropriate public education available or otherwise regarding the question of financial responsibility are subject to the due process procedures of §104.36.
(d) Compliance. A recipient may not exclude any qualified handicapped person from a public elementary or secondary education after the effective date of this part. A recipient that is not, on the effective date of this regulation, in full compliance with the other requirements of the preceding paragraphs of this section shall meet such requirements at the earliest practicable time and in no event later than September 1, 1978.
§104.34 Educational setting:
(a) Academic setting. A recipient to which this subpart applies shall educate, or shall provide for the education of, each qualified handicapped person in its jurisdiction with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person. A recipient shall place a handicapped person in the regular educational environment operated by the recipient unless it is demonstrated by the recipient that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. Whenever a recipient places a person in a setting other than the regular educational environment pursuant to this paragraph, it shall take into account the proximity of the alternate setting to the person's home.
(b) Nonacademic settings. In providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and the services and activities set forth in §104.37(a)(2), a recipient shall ensure that handicapped persons participate with nonhandicapped persons in such activities and services to the maximum extent appropriate to the needs of the handicapped person in question.
(c) Comparable facilities. If a recipient, in compliance with paragraph (a) of this section, operates a facility that is identifiable as being for handicapped persons, the recipient shall ensure that the facility and the services and activities provided therein are comparable to the other facilities, services, and activities of the recipient.
§104.35 Evaluation and placement:
(a) Preplacement evaluation. A recipient that operates a public elementary or secondary education program or activity shall conduct an evaluation in accordance with the requirements of paragraph (b) of this section of any person who, because of handicap, needs or is belived to need special education or related services before taking any action with respect to the initial placement of the person in regular or special education and any subsequent significant change in placement.
(b) Evaluation procedures. A recipient to which this subpart applies shall establish standards and procedures for the evaluation and placement of persons who, because of handicap, need or are believed to need special education or related services which ensure that:
(1) Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer;
(2) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and
(3) Tests are selected and administered so as best to ensure that, when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student's aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student's impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).
(c) Placement procedures. In interpreting evaluation data and in making placement decisions, a recipient shall (1) draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior, (2) establish procedures to ensure that information obtained from all such sources is documented and carefully considered, (3) ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and (4) ensure that the placement decision is made in conformity with §104.34.
(d) Reevaluation. A recipient to which this section applies shall establish procedures, in accordance with paragraph (b) of this section, for periodic reevaluation of students who have been provided special education and related services. A reevaluation procedure consistent with the Education for the Handicapped Act is one means of meeting this requirement.
[45 FR 30936, May 9, 1980, as amended at 65 FR 68055, Nov. 13, 2000]
§104.36 Procedural safeguards:
A recipient that operates a public elementary or secondary education program or activity shall establish and implement, with respect to actions regarding the identification, evaluation, or educational placement of persons who, because of handicap, need or are believed to need special instruction or related services, a system of procedural safeguards that includes notice, an opportunity for the parents or guardian of the person 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. Compliance with the procedural safeguards of section 615 of the Education of the Handicapped Act is one means of meeting this requirement.
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.
§104.41 Application of this subpart:
Subpart E applies to postsecondary education programs or activities, including postsecondary vocational education programs or activities, that receive Federal financial assistance and to recipients that operate, or that receive Federal financial assistance for the operation of, such programs or activities.
§104.42 Admissions and recruitment:
(a) General. Qualified handicapped persons may not, on the basis of handicap, be denied admission or be subjected to discrimination in admission or recruitment by a recipient to which this subpart applies. (b) Admissions. In administering its admission policies, a recipient to which this subpart applies: (1) May not apply limitations upon the number or proportion of handicapped persons who may be admitted; (2) May not make use of any test or criterion for admission that has a disproportionate, adverse effect on handicapped persons or any class of handicapped persons unless (i) the test or criterion, as used by the recipient, has been validated as a predictor of success in the education program or activity in question and (ii) alternate tests or criteria that have a less disproportionate, adverse effect are not shown by the Assistant Secretary to be available. (3) Shall assure itself that (i) admissions tests are selected and administered so as best to ensure that, when a test is administered to an applicant who has a handicap that impairs sensory, manual, or speaking skills, the test results accurately reflect the applicant's aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the applicant's impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure); (ii) admissions tests that are designed for persons with impaired sensory, manual, or speaking skills are offered as often and in as timely a manner as are other admissions tests; and (iii) admissions tests are administered in facilities that, on the whole, are accessible to handicapped persons; and (4) Except as provided in paragraph (c) of this section, may not make preadmission inquiry as to whether an applicant for admission is a handicapped person but, after admission, may make inquiries on a confidential basis as to handicaps that may require accommodation. (c) Preadmission inquiry exception. When a recipient is taking remedial action to correct the effects of past discrimination pursuant to §104.6(a) or when a recipient is taking voluntary action to overcome the effects of conditions that resulted in limited participation in its federally assisted program or activity pursuant to §104.6(b), the recipient may invite applicants for admission to indicate whether and to what extent they are handicapped, Provided, That: (1) The recipient states clearly on any written questionnaire used for this purpose or makes clear orally if no written questionnaire is used that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary action efforts; and (2) The recipient states clearly that the information is being requested on a voluntary basis, that it will be kept confidential, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will be used only in accordance with this part. (d) Validity studies. For the purpose of paragraph (b)(2) of this section, a recipient may base prediction equations on first year grades, but shall conduct periodic validity studies against the criterion of overall success in the education program or activity in question in order to monitor the general validity of the test scores.
§104.43 Treatment of students; general:
(a) No qualified handicapped student shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any academic, research, occupational training, housing, health insurance, counseling, financial aid, physical education, athletics, recreation, transportation, other extracurricular, or other postsecondary education aid, benefits, or services to which this subpart applies. (b) A recipient to which this subpart applies that considers participation by students in education programs or activities not operated wholly by the recipient as part of, or equivalent to, and education program or activity operated by the recipient shall assure itself that the other education program or activity, as a whole, provides an equal opportunity for the participation of qualified handicapped persons. (c) A recipient to which this subpart applies may not, on the basis of handicap, exclude any qualified handicapped student from any course, course of study, or other part of its education program or activity. (d) A recipient to which this subpart applies shall operate its program or activity in the most integrated setting appropriate.
§104.44 Academic adjustments:
(a) Academic requirements. A recipient to which this subpart applies shall make such modifications to its academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discriminating, on the basis of handicap, against a qualified handicapped applicant or student. Academic requirements that the recipient can demonstrate are essential to the instruction being pursued by such student or to any directly related licensing requirement will not be regarded as discriminatory within the meaning of this section. Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted. (b) Other rules. A recipient to which this subpart applies may not impose upon handicapped students other rules, such as the prohibition of tape recorders in classrooms or of dog guides in campus buildings, that have the effect of limiting the participation of handicapped students in the recipient's education program or activity. (c) Course examinations. In its course examinations or other procedures for evaluating students' academic achievement, a recipient to which this subpart applies shall provide such methods for evaluating the achievement of students who have a handicap that impairs sensory, manual, or speaking skills as will best ensure that the results of the evaluation represents the student's achievement in the course, rather than reflecting the student's impaired sensory, manual, or speaking skills (except where such skills are the factors that the test purports to measure). (d) Auxiliary aids. (1) A recipient to which this subpart applies shall take such steps as are necessary to ensure that no handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination because of the absence of educational auxiliary aids for students with impaired sensory, manual, or speaking skills. (2) Auxiliary aids may include taped texts, interpreters or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions. Recipients need not provide attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature.
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.
- Survey facilities and determine whether there are physical barriers to access programs. If structural changes are needed, include them in the transition plan.
- Determine whether employees and officials are familiar with the public entity’s ADA obligations.
- 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.
- 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.
Self-evaluation:
(a) A public entity shall, within one year of the effective date of this part, evaluate its current services, policies, and practices, and the effects thereof, that do not or may not meet the requirements of this part and, to the extent modification of any such services, policies, and practices is required, the public entity shall proceed to make the necessary modifications.
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)
Notice:
A public entity shall make available to applicants, participants, beneficiaries, and other interested persons information regarding the provisions of this part and its applicability to the services, programs, or activities of the public entity, and make such information available to them in such manner as the head of the entity finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part.
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.
Examples
- County B’s recreation department has four playgrounds. Two were renovated using the ADA Standards for Accessible Design and are accessible to children and adults with disabilities, two are not accessible. County B has information on the website concerning which playgrounds are accessible and which aren’t. The information is also included in the recreation department’s brochure.
- State D’s museum has monthly tours that include sign language interpreters for people who are deaf. The museum will also get interpreters for any program with 14 days’ notice. This information is on the museum’s website, posted in the reception area and on the museum’s brochure.
- A City Managers’ office receives a call from a new resident who uses a wheelchair. The resident would like to know which city facilities are accessible (and which aren’t) and where the accessible entrances are. The City Managers’ administrative assistant can provide that information because the ADA Coordinator created a list of the accessibility features in all facilities. The list is on the city’s website and the ADA Coordinator sent an email to all staff with the link.
Information and signage:
(a) A public entity shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
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.
Designation of responsible employee and adoption of grievance procedures:
(a) Designation of responsible employee. A public entity that employs 50 or more persons shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part, including any investigation of any complaint communicated to it alleging its noncompliance with this part or alleging any actions that would be prohibited by this part. The public entity shall make available to all interested individuals the name, office address, and telephone number of the employee or employees designated pursuant to this paragraph.
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)
Designation of responsible employee and adoption of grievance procedures:
(b) Complaint procedure. A public entity that employs 50 or more persons shall adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by this part.
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.
Existing facilities:
(d) Transition plan. (1) In the event that structural changes to facilities will be undertaken to achieve program accessibility, a public entity that employs 50 or more persons shall develop, within six months of January 26, 1992, a transition plan setting forth the steps necessary to complete such changes. A public entity shall provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the development of the transition plan by submitting comments. A copy of the transition plan shall be made available for public inspection. (2) If a public entity has responsibility or authority over streets, roads, or walkways, its transition plan shall include a schedule for providing curb ramps or other sloped areas where pedestrian walks cross curbs, giving priority to walkways serving entities covered by the Act, including State and local government offices and facilities, transportation, places of public accommodation, and employers, followed by walkways serving other areas. (3) The plan shall, at a minimum—(i) Identify physical obstacles in the public entity's facilities that limit the accessibility of its programs or activities to individuals with disabilities; (ii) Describe in detail the methods that will be used to make the facilities accessible; (iii) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and (iv) Indicate the official responsible for implementation of the plan.
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
Complaints to the Department of Justice and Other Federal Agencies
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.
Complaints:
(a) Who may file. An individual who believes that he or she or a specific class of individuals has been subjected to discrimination on the basis of disability by a public entity may, by himself or herself or by an authorized representative, file a complaint under this part. (b) Time for filing. A complaint must be filed not later than 180 days from the date of the alleged discrimination, unless the time for filing is extended by the designated agency for good cause shown. A complaint is deemed to be filed under this section on the date it is first filed with any Federal agency. (c) Where to file. An individual may file a complaint with any agency that he or she believes to be the appropriate agency designated under subpart G of this part, or with any agency that provides funding to the public entity that is the subject of the complaint, or with the Department of Justice for referral as provided in §35.171(a)(2).
§ 35.171 Acceptance of complaints (a) Receipt of complaints. (1) (i) Any Federal agency that receives a complaint of discrimination on the basis of disability by a public entity shall promptly review the complaint to determine whether it has jurisdiction over the complaint under section 504. (ii) If the agency does not have section 504 jurisdiction, it shall promptly determine whether it is the designated agency under subpart G of this part responsible for complaints filed against that public entity. (2) (i) If an agency other than the Department of Justice determines that it does not have section 504 jurisdiction and is not the designated agency, it shall promptly refer the complaint to the appropriate designated agency, the agency that has section 504 jurisdiction, or the Department of Justice, and so notify the complainant. (ii) When the Department of Justice receives a complaint for which it does not have jurisdiction under section 504 and is not the designated agency, it may exercise jurisdiction pursuant to § 35.190(e) or refer the complaint to an agency that does have jurisdiction under section 504 or to the appropriate agency designated in subpart G of this part or, in the case of an employment complaint that is also subject to Title I of the Act, to the Equal Employment Opportunity Commission. (3) (i) If the agency that receives a complaint has section 504 jurisdiction, it shall process the complaint according to its procedures for enforcing section 504. (ii) If the agency that receives a complaint does not have section 504 jurisdiction, but is the designated agency, it shall process the complaint according to the procedures established by this subpart.
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.
Investigations and compliance reviews:
(d) At any time, the complainant may file a private suit pursuant to section 203 of the Act, 42 U.S.C. 12133, whether or not the designated agency finds a violation. 28 § 35.175 Attorney's fees. In any action or administrative proceeding commenced pursuant to the Act or this part, the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs, and the United States shall be liable for the foregoing the same as a private individual.
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.