ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Public/Private Contracts and Partnerships:
How does the ADA apply?
2015 Mid-Atlantic ADA Update
Irene Bowen, J.D.
President, ADA One, LLC
Nancy Greene
ADA Title II Compliance Manager
Montgomery County (MD
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Title II/III interplay
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Title III covers “public accommodations” (private entities)
A public entity never has to comply with Title III
BUT you can’t “contract away” your title II responsibilities
You’re responsible for third parties acting on your behalf
as they carry out your programs
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Contractors
Public/private partnerships-formal or informal
Volunteers (individuals or groups)
Transportation providers
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Nancy Greene and Irene Bowen
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Title II/III Interplay
• Both Title II and III entities have many of the
same responsibilities under the ADA but there
area key differences
• Title II: Program access
• Title III- Readily achievable barrier removal
• Effective communication, undue burden, and
fundamental alteration in both titles
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Black Letter Law
• Title II prohibits public entities (i.e., “any State
[or] local government,” or any “instrumentality”
of one from discriminating against persons with
disabilities.
42 U.S.C. §§ 12131(1)(A)-(B), 12132.
• ADA regulations: “[a] public entity, in providing
any . . . service, may not, directly or through
contractual . . . arrangements, [discriminate] on
the basis of disability . . . .”
28 C.F.R. § 35.130(b)(1) (emphasis added)
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Black Letter Law (2)
A public entity is obligated to ensure compliance
with its title II obligations, even if a private
entity provides services on behalf of the state.
• Appendices A and B to DOJ regulations
28 C.F.R. Pt. 35, App. A, at 634 (2012); 28 C.F.R. Pt.
35, App. B, at 661 (2012)
• DOJ’s Title II Technical Assistance Manual
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Black Letter Law (3)
Federal courts have upheld this fundamental
ADA principle: a title II entity is liable for the
discriminatory actions of private entities with
which it has contracted.
• Armstrong v. Schwarzenegger, 622 F.3d 1058,
1062 (9th Cir. 2010)(state prisons)
• Henrietta D. v. Bloomberg, 331 F.3d 261, 286
(2d Cir. 2003) (access to public benefits)
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Black Letter Law (4)
• James v. Peter Pan Transit Management, No.
5:97-CV- 747, 1999 WL 735173, at *9-10
(E.D.N.C. Jan. 20, 1999)(public bus transit)
• Deck v. City of Toledo, 56 F. Supp. 2d 886, 895
(N.D. Ohio 1999) (curb ramps on city streets)
• Hunter v. District of Columbia, No. 1:12-CV1960 (GK) (D.D.C. August 18, 2014)(homeless
shelters)
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Principles (1)
ADA’s general provisions apply to actions of public
entity “directly or through contractual, licensing, or
other arrangements.”
• Equal opportunity
• Full and equal enjoyment
• Program access
• Effective communication
• Reasonable modifications
• Non-discrimination in choice of contractors
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Principles (2)
More specifically –
• Cannot, directly or through contractual or
other arrangements, utilize criteria or
methods of administration that have effect of
– subjecting qualified individuals with disabilities to
to discrimination
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Section 504 of the Rehabilitation
Act of 1973
• Binds County programs that receive federal financial
assistance, including -• Department, agency, special purpose district, or other
instrumentality of a local government
• Entity of local government that distributes the assistance
and each such department or agency or State/local entity
to which the assistance is extended
• Applied in same way as ADA
• Threat of funding cut-off for noncompliance
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Section 504 of the Rehabilitation
Act of 1973
• County must ensure compliance by subrecipients
• County cannot perpetuate discrimination by
providing significant assistance to an
agency/organization that discriminates as to
beneficiaries of County’s program
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Ask the ADA Coordinator (1):
What would you do?
Your Health Department has a contract with a small
non-profit group to provide pre-natal care for low
income women that includes doctor visits, nutrition
counseling, parenting classes and home visits by a
nurse. The Health Department does get federal
funding for some of its programs but not for this
one. A woman who is deaf wants to participate in
this program and requests interpreting services. She
is told that the non-profit does not have the funds
to provide for an interpreter. What laws apply? How
would you respond in this case?
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Ask the ADA Coordinator (2):
What would you do?
A community group plans an annual Octoberfest.
Funding for the festival comes primarily from local
businesses. It is held on the grounds of a private
school. The County’s Recreation Department
provides free space weekly for the planning
meetings, loans the group a stage and includes the
event in its calendar and its logo on the flyer. There
is no contract or MOU in place and no actual
County funding is provided. Are there ADA
considerations here? How should they be handled?
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Contracts to carry out County
programs
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Child care
Liquor stores
Transportation
Classes
Mediation
Psychiatric and mental
health care for inmates
in correction system
 Residential drug abuse
treatment
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Contracts that support County programs
(as-needed basis, administrative, ancillary
services)
• Security at events,
for County
buildings
• Public education
campaigns
• Printing
• Food service
• Building services
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Web sites
• As means of communication with members of
the public, websites must be accessible to people
with disabilities.
• Information, products, registration and other
communication must be accessible or available
through other means.
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Ask the ADA Coordinator (3):
What would you do?
Your town receives a federal grant to run an antismoking public education campaign directed at
teens. The campaign will include a website, an enewsletter, and several outreach events. The town
decides to contract with a non-profit to run the
campaign. The terms and conditions of all of your
town’s contracts now include a requirement that
the contractor comply with all applicable laws
including ADA. Is that provision enough to ensure
compliance? If not, what other steps should your
town take?
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Contracts involving Space
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Space
• New construction and alterations must be accessible.
• A County program needs to be accessible as a whole.
• County must meet program accessibility
requirements, and space it leases from another
entity is part of a program.
• If County leases space to private entity, lease
document can define respective responsibilities
(alterations, auxiliary aids, etc.).
• Service/concession agreements: County must ensure
private entity operates in way that enables County to
meet title II obligations.
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Leasing (1)
If County leases space for its use from private entities,
it must -• Meet its own program accessibility requirements
• Look for most accessible space and at least –
 Accessible parking (if within lease)
 Accessible route from entrance to primary
activities
 Accessible toilet facilities
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Nancy Greene and Irene Bowen
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Leasing (2)
If County leases space to private entity, lease
document can define respective responsibilities
(alterations, auxiliary aids, etc.).
• Private entity is subject to title III.
• Communication remains joint responsibility under
ADA.
• Lease of County space doesn’t by itself subject entity
to title II.
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Ask the ADA Coordinator (4):
What would you do?
Your City has two winter shelters for men who
are homeless. A third is needed so the City
issues a request for proposals. The only proposal
received is from a religious congregation
offering space in the basement of their building.
There is no elevator in the building. Can your
City contract with this provider?
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Ask the ADA Coordinator (5):
What would you do?
Your County rents an older building to a small
business that runs a music program. The business
does not receive any funding from the City for their
program. An individual who uses a wheelchair tells
the manager that he cannot get into the building
because there is no ramp from the parking space to
the entrance. Another individual has asked for
CART services to attend a meeting. The business
calls you to request an ramp from the parking lot
and asks you to provide a CART provider for the
meeting next week. How do you respond?
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Contracts involving equipment,
furniture, technology,
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Principles
• Adequate number of
accessible items
• Usable by people with
various disabilities
• Arranged to facilitate
approach and independent
use
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Features (1)
• Controls, buttons, operating mechanisms,
surfaces within reach ranges
• Interactive elements accessible to people
with disabilities affecting mobility, height,
vision, hearing
• Use best practices
• Research products that provide increased
accessibility
• Make effort to purchase these
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Nancy Greene and Irene Bowen
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Features (2)
 Access to space
 Clear floor space at approach
and between items if necessary
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Electronic communication
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Phone systems
E-mail systems
Online services
Library services (catalog
systems)
• Kiosks, electronic building
directories
• In meetings: materials,
audio and video
• Computer stations
• E-readers
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
The myth: “ADA-approved”
• No such thing
• And why wouldn't this be ADA-approved?
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Ask the ADA Coordinator (6):
What would you do?
• Your County has decided to install electronic
vehicle charging stations for the public to use
at County libraries, recreation centers and
parking garages. The manager in charge of the
project does not think the ADA applies here at
all. He has checked and found there are no
applicable ADA standards and he has heard
that no one with disabilities uses these
stations anyway. How do you respond?
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Goals and process
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Goals
• Ensure that any contractors or partners that
carry out county programs and services do so in
compliance with the ADA.
• Contract language should require that goods and
services purchased/provided are accessible to
people with disabilities.
• Ensure nondiscrimination in selection of
contractors/partners.
• Monitor compliance.
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
ADA at each step
• Developing and posting solicitations
• Participation in bidding process
• Public meetings and oral interviews
– Communication
– Accessibility
– Policies
• Decisions/awards
• Contract provisions
• Monitoring
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Mechanisms (1)
1. Make and express the commitment
2. Develop policies
3. Involve local disability groups/individuals (input,
testing)
4. State criteria in contract
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New construction and alterations
Accessibility of space, products, IT
Effective communication (training, materials, phone)
Emergency egress
Security, transportation, policies, etc.
Volunteers and advisory boards
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Mechanisms (2)
5. Require assurances of compliance
6. Selection criteria: candidate should show -• Highlights of accessibility features of products
• Nondiscrimination policies, including transportation,
evacuation, communication
• Experience, expertise, examples
• History of any complaints and their resolution
7. If no candidate meets requirements, or
compliance is not practical or too costly –
• Document it
• Discuss with disability groups
• Procure the most accessible products/services
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Mechanisms (3)
8. Require reports
9. Require training
10. Conduct organized and consistent monitoring
11. Take stock of County’s progress and correct the
course
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
Ask the ADA Coordinator (7):
What would you do?
You receive a complaint from a resident who
participates in a mental health day treatment
program operated for your city by a contracted
service provider. The program is sponsoring a
trip to Ocean City but when she signs up to go
the resident is told that the buses cannot
accommodate wheelchairs, walkers, or other
mobility devices. She uses a wheelchair. How do
you respond?
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Summing it up
Challenges
 New products, programs, services
 Raising and maintaining awareness that ADA
impacts almost everything governments do
 Staff training and buy-in
Best Practices
 Keep up with the changes
 Share information with decision makers
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ADA Update 2015:
Public/private contracts and partnerships
8/22/2015
CONTACT
Irene Bowen, J.D.
President, ADA One, LLC
9 Montvale Court, Silver Spring, MD 20904
IreneBowen@ADA-One.com
(301) 879 4542
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CONTACT
Nancy Greene
Title II Compliance Manager
Montgomery County Government
101 Monroe Street, 9th floor
Rockville, MD 20850
nancy.greene@montgomerycounty
md.gov
240-777-6023 (V)
240-777-6197 (TTY)
240-777-6030 (F)
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