The ADA
An Overview of Title II
Sandy Lahmann
Nov. 16, 2011
Disclaimer
• Information, materials, and/or technical assistance
are intended solely as informal guidance, and are
neither a determination of your legal rights or
responsibilities under the ADA, nor binding on any
agency with enforcement responsibility under the
ADA.
• ADA Center authorized by NIDRR to provide
information, materials, and technical assistance to
individuals and entities that are covered by the ADA.
Regional ADA Centers
www.adata.org
1-800-949-4232
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• Technical assistance / ADA information
• Referral and networking with other disability
organizations
• Training
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Meeting the Challenge, Inc.
• Operates the Rocky Mountain ADA Center project
• Generates materials and products that support
accessibility
• Offers customized consulting services
• Provides training on various disability rights laws
MTC Consulting Services
Providing customized solutions for:
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Title II Self Evaluations and Transition Plans
Title II Facility and Program Accessibility
Commercial Facility Accessibility
School District Accessibility
Architectural Plan Review
Public Housing Accessibility
Transit System Accessibility
ADA Basics
• Civil rights - prohibits discrimination against persons
with disabilities
• It’s about equal rights and equal opportunity, not
special privileges
• Focus is on integration
• The ADA is a minimum standard. Nothing prevents
any entity from providing access beyond the
minimum.
ADA Basics
• Title I – Employment
• Title II – State and local government (including public
post-secondary education)
• Title III – Places of public accommodations (i.e.
private businesses and nonprofit organizations,
including private post-secondary education)
• Title IV – Telecommunications
• Title V – Miscellaneous
ADA Basics
• Each part of the ADA must be applied on an
individualized, fact-specific, case-by-case basis.
• The ADA is not black-and-white.
• Our favorite answer to every question: it depends.
Title II
• 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 local governmental entity or be
subjected to discrimination by a local governmental
entity.
• Under the ADA, a local governmental entity may not
discriminate against individuals or entities because of
their known relationship or association with persons
who have disabilities.
Title II
• A public entity is not relieved of its obligation
to make its programs accessible if no
individual with a disability is currently known
to be accessing such a program. The absence
of individuals with disabilities cannot be used
as the test of whether programs and activities
must be accessible.
General Title II Requirements
For qualified individuals with disabilities, a Title II entity
must:
• Provide equal opportunity (does not guarantee equality of
results)
• Not deny participation
• Not apply surcharges
• Not make unnecessary inquiries
• Strive for integrated programs, not separate programs
• Make reasonable modifications to permit participation
• Accessible transportation when transportation is provided
• Ensure contracted service providers adhere to Title II
requirements
Qualified Individual with a Disability
Qualified Individual with a Disability – meets the
essential eligibility requirements of the
program, activity, or service with or without:
– Reasonable modification
– Barrier removal
– Auxiliary aids or services
Eligibility/Inquiries/Surcharges
• May not impose eligibility criteria for participation in
programs that screen out or tend to screen out
persons with disabilities, unless can show that
requirements are necessary for the provision of the
program
• May not make unnecessary inquiries into the
existence of a disability
• May not place a surcharge only on particular
individuals with disabilities or groups of individuals
with disabilities to cover expenses of compliance.
Integrated vs. Separate Programs
• Cannot exclude a person with a disability from a
regular program
• May offer special programs but cannot require that
an individual participate in the special program and
deny participation in the regular program
• Cannot require an individual to accept benefits
specifically designed for people with disabilities
Revised Title II Regulations
• Published September 10, 2010
• Most went into effect March 15, 2011
• Some go into effect March 15, 2012
Revised Title II Regulations
• Areas affected
– 2010 Standards for Accessible Design (3-15-12)
– Exams and Courses (Title III but can be applied to
Title II)
– Service Animals
– Effective Communication
– Ticketing
– Wheelchairs and Other Power Driven Mobility
Devices
– Lodging reservations (3-15-12)
ADA Coordinator
• A public entity with 50 or more employees
must have an ADA Coordinator
– Coordinates efforts to comply with all aspects of
the ADA
– Receives and investigates ADA grievances
– Must have knowledge, authority and motivation
to implement regulations effectively
Providing Public Notice
• All public entities must provide information
regarding rights and protections under Title II
as applied to their programs and policies
– Nondiscrimination policy
– ADA Coordinator’s name and contact information
Providing Public Notice
• Post on website
• Post on recruiting and application materials
• Include in catalogs, manuals, and pamphlets
that are distributed to students and the public
which describe programs and activities
• Post throughout buildings
• Provide alternate formats as appropriate
Grievance Procedure
• A public entity with 50 or more employees
must adopt and publish grievance procedures
for prompt and equitable resolution of ADA
complaints
– Detailed description of procedure to submit
grievance
– Two step process that allows for appeals
– Reasonable time frame for review and resolution
– Good record keeping
Self-Evaluation
All public entities must:
• Evaluate current programs, policies and practices
for accessibility
• Identify programs, policies, practices not in
compliance
• Make modifications to bring them into
compliance
• Allow individuals with disabilities and other
interested persons and organizations to
participate in evaluation process
Self-Evaluation
All public entities must make self-evaluation
available for public inspection
• A list of interested persons consulted
• A description of areas examined and any
problems identified
• A description of modifications made
Transition Plan
• Public entities with 50 or more employees
• If structural changes to facilities are needed to
create program accessibility must develop
transition plan to identify steps that will be
taken to create accessibility
– Identify physical obstacles
– Describe in detail methods that will be used to
create accessibility
– Specify schedule for completion
– Identify responsible official
Transition Plan
• Allow individuals with disabilities and other
interested persons and organizations to
review and comment on transition plan
• Must be available for public inspection
Facility Access
• New construction and alterations
– Must be built in compliance with the ADA
Standards for Accessible Design
• Existing facilities (built before 1992)
– Evaluate in terms of program accessibility
Program Accessibility
• A public entity’s services, programs, or activities,
when viewed in their entirety must be readily
accessible to and usable by people with disabilities
• Not necessary to make each of existing facilities
accessible
• Achieving program accessibility
– Reasonable modification to policies and
procedures
– Acquisition or redesign of equipment
– Provision of program at alternate site
– Structural modification or physical barrier removal
ADA Standards for Accessible Design
• 1991 ADA Standards (previously called ADAAG)
• 2010 ADA Standards
– Enforceable March 15, 2012
– Safe harbor for those features compliant with
1991 ADA Standards in buildings built prior to
March 15, 2012
– Must be used in all new construction and
alterations as of March 15, 2012
ADA Standards
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Accessible parking
Accessible routes
Accessible entrances
Accessible areas of primary function
Accessible restrooms
Accessible transportation facilities
Accessible places of lodging
Accessible recreational facilities
ADA Standards
• Includes
– Doors, reach ranges, ramps, elevators, stairs, curb
ramps, protruding objects, grab bars, drinking
fountains, alarms, signs, ATMs, assembly areas,
dressing rooms, counters, etc.
• Advance Notice of Proposed Rulemaking
– Public rights-of-way, medical equipment
New 2010 Standards – No Safe Harbor
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Residential facilities dwelling units
Amusement rides
Recreational boating facilities
Exercise machines and equipment
Fishing piers and platforms
Golf facilities
Miniature golf facilities
New 2010 Standards – No Safe Harbor
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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
– Accessible route in court sports facilities
Historic Structures
• Not required to take any action that would
threaten or destroy the historic significance of
an historic property
• Alternative measures to achieve program
accessibility must be undertaken
Maintenance of Accessible Features
• Must maintain in working order equipment and
features of facilities that are required to provide
ready access to individuals with disabilities.
• Isolated or temporary interruptions in access due to
maintenance and repair of accessible features are
not prohibited
• Accessible route must remain accessible and not
blocked
• Snow removal
• Adequate maintenance, prompt repairs
Reasonable Modification
• Changes to policies, practices, and procedures that
allow persons with disabilities access to programs
and services. For example:
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Providing materials in an alternate format
Providing assistive listening devices
Holding a class in an accessible location
Providing a sign language interpreter
Allowing a service animal
Testing accommodations (extra time, distraction free
setting)
Direct Threat
• Don’t have to do anything that’s a direct threat - a
significant risk of substantial harm.
• May impose legitimate safety requirements
necessary for the safe operation of programs.
• Must ensure safety requirements are based on real
risks, not on speculation, stereotypes, or
generalizations about individuals with disabilities.
• Factors to consider:
– Nature, duration, and severity of risk,
– Probability that injury will occur
– Potential for mitigation by reasonable modification
Fundamental Alteration and Undue
Burden
• Don’t have to do anything that’s a
fundamental alteration or undue burden
• Fundamental alteration – a modification so
significant that it alters the essential nature of
the program or service offered.
• Undue burden – significant difficulty, expense,
or disruption; financial or administrative cost
beyond the resources of the public entity.
Fundamental Alteration and Undue
Burden
• Determination of fundamental alteration or undue
financial or administrative burden
– Made by the head of the public entity or his or her
designee
– Accompanied by a written statement of the reasons for
reaching that conclusion
– Based on all resources available to the public entity.
• Must take other actions that would not result in
alterations or burdens but would ensure that
individuals with disabilities receive the benefits and
services of the program
Reasonable Modification
• When choosing a method of providing program
access, must give priority to the one that results in
the most integrated setting appropriate to encourage
interaction among all users, including individuals
with disabilities
• Not required to provide personal devices or services
– Wheelchairs, hearing aids, eye glasses
– Assistance eating, dressing, and using the toilet
• Procedure to request modifications
Wheelchairs
• Manually operated or power driven, designed
primarily for use by an individually with a
mobility disability for the main purpose of
indoor, or both indoor and outdoor
locomotion (includes scooters)
• Must permit wheelchairs and other manually
powered mobility aids (walkers, crutches,
canes, braces) in any area open to pedestrian
use
Other Power-Driven Mobility Devices
(OPDMD)
• Mobility device operated by batteries, fuel, or other
engines – whether or not designed primarily for use
by individuals with mobility disabilities – that is used
by individuals with mobility disabilities for the
purpose of locomotion
• Not a wheelchair
• Includes
– Segway ® PT
– Golf cars
Other Power-Driven Mobility Devices
(OPDMD)
• To determine if a class of OPDMDs can be
allowed as a reasonable modification, apply
assessment factors
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Type, size, weight, dimensions and speed of device
Facility’s volume of pedestrian traffic
Facility’s design and operational characteristics
Whether legitimate safety requirements can be
established to permit safe operation
– Whether use is a substantial risk of serious harm to
the immediate environment or natural or cultural
resources
Ticketing
Guidance is now provided on:
• Sale of tickets for accessible seating
• Information covered entities must provide about
accessible seating,
• Ticket prices
• Options for purchasing multiple tickets
• Hold and release of tickets for accessible seating
• Ticket transfer
• Secondary ticket market
• Prevention of fraud
Service Animals
• 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
• Exception: miniature horse
• Other species other than dogs and miniature horses
do not qualify as service animals
• Work or tasks performed by service animal must be
directly related to the handler’s disability
Service Animals
• Because service animals must “do work or perform
tasks” emotional support and comfort animals are
not included in the definition of “service animal”
• Certification, identification papers, or vest cannot be
required
• Animal must be under handler’s control
– Must use harness, leash or tether unless disability
prevents or unless it interferes with task being
performed
Service Animals
• Care and supervision is the responsibility of
the handler
• Animal must be housebroken
• Cannot deny service animal because of
allergies or fears
Service Animals
• Two questions are permitted only if not obvious:
– Is this animal required because of a disability?
– What work or task has this animal been trained to
perform?
• Don’t inquire about the nature or extent of the
handler’s disability
• ADA does not include service animals-in-training.
State law may.
Equally Effective Communication
• A public entity must ensure that its
communications with individuals with
disabilities are equally as effective as
communications with others
• Includes participant in program, companions
(e.g. parent with a disability), and members of
the general public
Auxiliary Aids and Services- Deaf
• Qualified sign language interpreters (including video
remote interpreting) vs. exchange of written notes
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length and complexity of the communication involved
context, number of people involved, importance
English as a second language to American Sign Language
Public entity provides and pays for interpreter (No
surcharge!)
– Cannot require individual to bring their own interpreter
– Qualified interpreters vs. certified interpreters
– Accurate, impartial and confidential
Auxiliary Aids and Services- Deaf, Hard
of Hearing and Speech Impaired
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Assistive listening devices and systems (loop, FM)
Real time computer-aided transcription services (CART)
Open and closed captioning
TTYs, videophones (VRS), relay services, captioned
telephones
– Train staff to use TTYs and handle relay calls
• Telephone handset amplifiers
• Telephones compatible with hearing aids
Auxiliary Aids and Services – Blind and
Low Vision
• Materials in alternate formats
– Whenever you provide information to the public in
written form, make that information available to
individuals with vision impairments in a form that is
usable by them
– Braille, electronic documents for screen readers, large
print, audio recordings, high contrast, magnification
software
– Individualize: Only 10% of people who are blind can
read Braille
Auxiliary Aids and Services – Blind and
Low Vision
• Qualified reader
– Can read effectively, accurately, and impartially
– Can use any necessary specialized vocabulary
– Is qualified in language and subject matter
• Transcriber
Primary Consideration
• Consult with individual to determine most
appropriate auxiliary aid or service
• Give primary consideration to the first choice of the
individual, unless
– Another equally effective means is available
– Use of means chosen would result in fundamental
alteration in the service, program, or activity or in
undue financial or administrative burdens
– Still must provide effective communication by
another means
Website Accessibility
• The ADA requires all programs of public
entities to be accessible, including websites
• The ADA does not currently provide standards
• Advanced Notice of Proposed Rulemaking
– http://www.ada.gov/anprm2010/web%20anprm_
2010.htm
• Section 508 or W3C are best practice
Disability Etiquette
• Attitudes are the biggest barrier of all!
• Watch your language!
– These terms are offensive:
• Handicapped
• Mentally retarded
• Wheelchair bound
– Avoid negative, disempowering words (suffering
from, victim of)
Etiquette basics
• People first language- Put the person first and the
disability second
• Don’t make assumptions about needs, abilities or
limitations
• Be aware of varying levels of abilities and limitations
• Be aware and respectful of hidden disabilities
• Always ask before helping and listen to instructions
• Respect independence
Etiquette basics
• Treat adults as adults
• Speak directly to the person with the disability, not
their companion, aide or interpreter
• Be sensitive about physical contact
• Don’t touch mobility aids
• Do not pet, feed or distract service animals.
Resources
• Title II ADA Regulations
http://www.ada.gov/regs2010/titleII_2010/titleII_20
10_regulations.htm
• Title II Highlights
http://www.ada.gov/t2hlt95.htm
• Title II Action Guide
http://www.adaptenv.org/index.php?option=Resour
ce&articleid=185
Resources
• Fact Sheet: Highlights of the Final Rule to
Amend the Department of Justice's Regulation
Implementing Title II of the ADA
http://www.ada.gov/regs2010/factsheets/title
2_factsheet.html
Resources
• Revised ADA Requirements: Service Dogs
http://www.ada.gov/service_animals_2010.p
df
• Revised ADA Requirements: Ticket Sales
http://www.ada.gov/ticketing_2010.pdf
• Revised Regulations: Effective Communication
http://www.ilr.cornell.edu/edi/dbtacnortheast
/docs/National%20ADA%20Fact%20Sheets/Na
tional%20ADA%20Center%20Fact%20Sheet%2
02%20EFFECTIVE%20COMMUNICATION.pdf
Resources
• 1991 ADA Standards
http://www.ada.gov/stdspdf.htm
• 2010 ADA Standards
http://www.ada.gov/2010ADAstandards_inde
x.htm
Resources
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Department of Justice (DOJ) - Enforcement agency
for Title II and Title III
800-514-0301
www.ada.gov
• The Access Board – Develops standards for accessible
design
800-872-2253
www.access-board.gov
Sandy Lahmann
Information Specialist
Rocky Mountain ADA Center
Meeting the Challenge, Inc.
slahmann@mtc-inc.com
www.adainformation.org
www.mtc-inc.com
1-800-949-4232 from CO, WY, UT, MT, ND, SD
719-444-0268
719-444-0252 (Meeting the Challenge)
3630 Sinton Rd, Ste 103
Colorado Springs, CO 80907