The Americans With Disabilities Act (ADA):
Title II: State and Local Goverment
- What is the ADA?Who is a "qualified" individual with a disability?What is required of state and local governments?What access must be offered by state and local governments to qualified individuals with disabilities in existing facilities?Must state and local governments who build new facilities or alter existing ones comply with the architectural accessibility requirements of the ADA?Are state and local governments required to make roads and sidewalks accessible?When must "auxiliary aids and services" be offered to ensure communications accessibility?Is there a process by which state and local governments are required to address accessibility under the ADA?How may an individual address a state or local government's failure to comply with the ADA?
- ADA Title II Links
What is the ADA?
The Americans with Disabilities Act (ADA) is a federal law forbidding discrimination against persons with disabilities passed by Congress and signed by President Bush on July 26,1990. It may be found at 42 U.S.C. 12101, et. seq. And is divided into five titles. Title 1 covers employment discrimination. Title II forbids discrimination in public services: including those offered by state and local government, public bus systems and public rail systems. Title III covers public accommodations offering goods or services to the general public, including transportation services provided by privately owned bus and rail companies. Title IV sets out the requirements for telecommunications relay services. Title V contains various miscellaneous provisions.Under all five titles a person with a disability may be either:
- A person with a physical or mental impairment that substantially limits one or more major life activities (examples: walking, seeing, hearing, speaking, breathing, working, etc.). The severity of the impairment is assessed without regard to medication or assistive devices (crutches, wheelchairs, hearing aids, etc.),
A person with a record of a disability, or
- A person who is regarded as having a disability, i. e., someone with a less severe impairment who is treated by others as having an impairment which limits a major life activity.
Discrimination based on the current illegal use of drugs is not unlawful under the ADA. Health services, however, cannot exclude individuals currently engaged in the illegal use of drugs.The ADA does not consider homosexuality and bisexuality to be disabling impairments. The term disability does not include what the ADA defines as sexual disorders (transvestism, transexualism, pedophilia, exhibitionism, etc.), nor does it include compulsive gambling, pyromania, or kleptomania.This section covers the protections against discrimination in the provision of public services offered by state and local governments contained in Title II of the ADA. 42 U.S.C. 12131-12134. The title outlaws discrimination against "qualified" individuals with disabilities in all programs and activities of all departments, agencies, special purpose districts, and other instrumentalities of state and local government.
[Return to top] Who is a "qualified" individual with a disability?
An individual with a disability who meets the essential eligibility requirements for the receipt of services or participation in a program or activity of government is "qualified". The individual is "qualified", even if in order to meet the eligibility requirements, it is necessary to:
- Make reasonable modifications to rules, policies, and practices,Remove architectural, communication or transportation barriers or
- Provide auxiliary aids or services.
[Return to top] What is required of state and local governments?
Generally, state and local governments may not exclude people with disabilities, nor deny them services or the ability to participate in programs and activities. They may not discriminate either directly or by contract. Services and programs must be offered in the most integrated setting appropriate to the needs of the individual. If specialized programs or services for the disabled are offered, individuals with disabilities may choose to participate in the more general programs.Eligibility criteria may not be used to screen out individuals with disabilities, unless such criteria can be shown to be necessary for the provision of services or programs. Legitimate safety requirements may be imposed but they must be based on actual risks and facts, not on speculation or stereotypes.A state or local government must make reasonable modifications in its policies practices and procedures when necessary to afford services and programs to persons with disabilities, unless it can demonstrate that the modifications would fundamentally alter the nature of the services or programs provided. Even law enforcement agencies must make changes in policies that result in discriminatory arrests or abuse of individuals with disabilities.Surcharges cannot be imposed solely on persons with disabilities to cover the cost of compliance with the ADA. It is also unlawful to discriminate against non-disabled individuals because they associate with persons with disabilities. Persons with disabilities may not be harassed nor retaliated against for exercising their rights.State and local governments may not discriminate against qualified individuals with disabilities in the granting of licenses and certifications nor in administering such programs. Requirements for the programs or activities of licensees or certified entities may not subject qualified individuals with disabilities to discrimination.[Return to top] What access must be offered by state and local governments to qualified individuals with disabilities in existing facilities?
As a basic rule, state and local governments must operate each program so that, viewed in its entirety the program is readily accessible to and usable by people with disabilities. Program access is not required is the government can show that a "fundamental alteration" of the programs or that "undue financial or administrative burdens" would result.If a program can be may accessible by some method other than providing architectural access, then architectural access is not required. Other methods include:
- Redesign of equipmentReassignment to accessible buildingsUse of aidesHome visitsDelivery of services at alternative accessible sites
- Alteration of existing facilities.
For example, if an existing government office building has steep stairs with no ramp, workers could meet with wheelchair bound individuals in an accessible office across the street. The government would not be required to install a ramp. Carrying is not allowed except in extremely unusual and exceptional cases.Governments will be excused from providing program access on the basis of "fundamental alteration" or "undue burden" only in the most unusual cases. The government's decision to deny access must be in writing and signed by a high official, no lower than a department head, with budgetary authority.
[Return to top] Must state and local governments who build new facilities or alter existing ones comply with the architectural accessibility requirements of the ADA?
Yes. Effective 1-26-98, new construction and alterations must be "readily accessible and usable by" persons with disabilities. The ADA Accessibility Guidelines must be strictly followed. Buildings leased or rented by the government do not have to be physically accessible. The program access requirements do apply, however.[Return to top] Are state and local governments required to make roads and sidewalks accessible?
Yes. Where the government has authority over roads and sidewalks it must provide physical access in the form of curb ramps or sloped areas to all. Providing curb ramps to sidewalks serving state and local government buildings, public accommodations, transportation facilities and places of employment must be given first priority.[Return to top] When must "auxiliary aids and services" be offered to ensure communications accessibility?
"Auxiliary aids and services" must be provided when necessary to avoid segregating or excluding an individual with a disability or denying services to the disabled unless providing them would either fundamentally alter the nature of the service or be an undue burden (requiring significant difficulty or expense) to the local or state government. Examples of auxiliary aids and services include:
- Qualified interpreters, decoders, open and closed captioning,TDDs, etc.Qualified readers, audio recordings, Braille, large print, etc.Speech synthesizers, computer terminals, etc.
- Acquisition or modification of equipment or devices.
Primary consideration must be given to the request of the disabled individual for a particular auxiliary aid unless the government can demonstrate another means of communication is effective or that the individual's choice would be a fundamental alteration of the service or an undue burden on the government.Governments will be excused from providing an auxiliary aid or service on the basis of "fundamental alteration" or "undue burden" only in the most unusual cases. The government's decision to deny access must be in writing and signed by a high official, no lower than a department head, with budgetary authority.
[Return to top] Is there a process by which state and local governments are required to address accessibility under the ADA?
Yes. Each unit of local and state government was required to complete a self evaluation, with public input, by January 26,1993. A written document, called a transition plan, was to be developed by July 26,1992. That document should:
- Identify physical obstacles which limit program accessDescribe methods to achieve program accessSet a schedule for architectural changes each year
- Include a schedule providing curb ramps at existing pedestrian walkways
All structural changes were to be made as soon as practicable, but no later than January 26,1995.
[Return to top] How may an individual address a state or local government's failure to comply with the ADA?
Internal grievance procedure. All state and local governments with 50 or more employees must designate at least one employee to coordinate the government's effort to comply with the ADA. That employee must ensure that any complaints alleging failure to comply are investigated. Such governments must adopt and publish voluntary grievance procedures providing for the resolution of ADA complaints.Administrative complaints to the federal government. And individual may file an administrative complaint within 180 days after the incident of discrimination with either (a) the federal agency providing funding to the state or local government program, (b) one of eight other designated federal agencies or (c) the Department of Justice. After investigation the agency will attempt to informally resolve the complaint. If that effort is unsuccessful the agency will send a Letter of Findings to the local or state government. If voluntary compliance cannot be achieved, the case is referred to Department of Justice which has the power to file a lawsuit.Private lawsuits. An individual may file a lawsuit at any time without filing an administrative complaint. The court may order the state or local government to comply with the ADA, award attorney fees and grant damages.Alternative dispute resolution. If all parties agree the dispute may be resolvedto mediation or arbitration.Legal advice or representation may be very helpful in achieving compliance. If you cannot afford an attorney, you may contact:
Nevada Disability Advocacy and Law Center
1311 North McCarran Blvd.Suite 106
Sparks, NV 89431
(775) 333-7878
(775) 788-7825 (fax)
(775)788-7824(TTY)
[Return to top] ADA Title II LinksThe following web sites may provide additional information of assistance regarding Title II of the ADA:U.S. Department of Justice
http://www.usdoj.gov/crt/ada/adahom1.htmADA tech. asst.
http://www.adata.org/[Return to top]