ADA Title II Technical Assistance Manual
Covering State and Local Government Programs and Services
This technical assistance manual addresses the requirements of title IIof the Americans with Disabilities Act, which applies to the operations ofState and local governments. It is one of a series of publications issued byFederal agencies under section 506 of the ADA to assist individuals andentities in understanding their rights and duties under the Act.
This manual is part of a broader program of technical assistanceconducted by the Department of Justice to promote voluntary compliance withthe requirements not only of title II, but also of title III of the ADA,which applies to public accommodations, commercial facilities, and privateentities offering certain examinations and courses.
The purpose of this technical assistance manual is to present the ADA'srequirements for State and local governments in a format that will be usefulto the widest possible audience. The guidance provided in the Department'sregulations and accompanying preambles has been carefully reorganized toprovide a focused, systematic description of the ADA's requirements. Themanual attempts to avoid an overly legalistic style without sacrificingcompleteness. In order to promote readability and understanding, the textmakes liberal use of questions and answers and illustrations.
The manual is divided into nine major subject matter headings withnumerous numbered subheadings. Each numbered heading and subheading islisted in a quick reference table of contents at the beginning of the manual.
II-2.2000 Physical or mental impairments.
II-2.3000 Drug addiction as an impairment.
II-2.4000 Substantial limitation of a major life activity.
II-2.5000 Record of a physical or mental impairment that substantially limited a major life activity.
II-2.6000 "Regarded as."
II-2.8000 Qualified individual with a disability.
II-4.2000Relationship among title II and other Federal laws that prohibitemployment discrimination by public entities on the basis of disability.
II-4.3000 Basic employment requirements.
II-5.2000 Methods for providing program accessibility.
II-5.3000 Curb ramps.
II-5.4000 Existing parking lots or garages.
II-5.5000 Historic preservation programs.
II-5.6000 Time periods for achieving program accessibility.
1) Work areas
2) Equivalent facilitation
3) Exemption from application of standards in new construction
4) Exemption from application of standards in alterations
5) Alterations triggering additional requirements
1) Van parking
2) Valet parking
5) Areas of rescue assistance or places of refuge
6) Water fountains
7) Storage and shelves
8) Volume controls
9) Telecommunication Devices for the Deaf (TDD's)
10) Assembly areas
11) Automated teller machines (ATM's)
13) Detectable warnings
14) Carpet and carpet tile.
15) Curb ramps
16) Elevator hoistway floor designations and car controls
17) Visual alarms
18) Elevators and platform lifts in new construction and alterations
Regulatory references: 28 CFR 35.102-35.104.
Title II of the ADA covers programs, activities, and services of public entities. It is divided into two subtitles. This manual focuses on subtitle A of title II, which is implemented by the Department of Justice's title II regulation. Subtitle B, covering public transportation, and the Departmentof Transportation's regulation implementing that subtitle, are not addressed in this manual.
Subtitle A is intended to protect qualified individuals with disabilities from discrimination on the basis of disability in the services,programs, or activities of all State and local governments. It additionally extends the prohibition of discrimination on the basis of disability established by section 504 of the Rehabilitation Act of 1973, as amended, toall activities of State and local governments, including those that do not receive Federal financial assistance. By law, the Department of Justice'stitle II regulation adopts the general prohibitions of discrimination established under section 504, and incorporates specific prohibitions ofdiscrimination from the ADA.
Subtitle B is intended to clarify the requirements of section 504 for public transportation entities that receive Federal financial assistance. Also it extends coverage to all public entities that provide public transportation, whether or not they receive Federal financial assistance. It establishes detailed and complex standards for the operation of publictransit systems, including commuter and intercity rail (AMTRAK). The Department of Transportation is responsible for the implementation of the second subtitle of Title II and issued a regulation implementing that subtitle.
1) Any State or local government;
2) Any department, agency, special purpose district, or other instrumentality of a State or local government; or
3) Certain commuter authorities as well as AMTRAK.
As defined, the term "public entity" does not include the Federal Government. Title II, therefore, does not apply to the Federal Government,which is covered by sections 501 and 504 of the Rehabilitation Act of 1973.
Title II is intended to apply to all programs, activities, and services provided or operated by State and local governments. Currently, section 504 of the Rehabilitation Act only applies to programs or activities receiving Federal financial assistance. Because many State andlocal government operations, such as courts, licensing, and legislative facilities and proceedings do not receive Federal funds, they are beyond the reach of section 504.
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 relationshipbetween the entity and the governmental unit to determine whether the entityis public or private. Factors to be considered in this determination include--
1) Whether the entity is operated with public funds;
2) Whether the entity's employees are considered government employees;
3) Whether the entity receives significant assistance from the government by provision of property or equipment; and
4)Whether the entity is governed by an independent board selected bymembers of a private organization or a board elected by the voters orappointed by elected officials.
II-1.3000 Relationship to title III.Public entities are not subject to title III of the ADA, which coversonly private entities. Conversely, private entities are not subject totitle II. In many situations, however, public entities have a close relationship to private entities that are covered by title III, with the result that certain activities may be at least indirectly affected by both titles.
ILLUSTRATION 1: A privately owned restaurant in a State park operates for the convenience of park users under a concession agreement with a State department of parks. As a public accommodation, the restaurant is subject to title III and must meet those obligations. The State department of parks, apublic entity, is subject to title II. The parks department is obligated to ensure by contract that the restaurant is operated in a manner that enables the parks department to meet its title II obligations, even though the restaurant is not directly subject to title II.
ILLUSTRATION2: A city owns a downtown office building occupied by its department ofhuman resources. The building's first floor, however, is leased to arestaurant, a newsstand, and a travel agency. The city, as a publicentity and landlord of the office building, is subject to title II. Asa public entity, it is not subject to title III, even though itstenants are public accommodations that are covered by title III.
ILLUSTRATION3: A city engages in a joint venture with a private corporation tobuild a new professional sports stadium. Where public and private entities act jointly, the public entity must ensure that the relevant requirements of title II are met; and the private entity must ensure compliance with title III. Consequently, the new stadium would have tobe built in compliance with the accessibility guidelines of both titles II and III. In cases where the standards differ, the stadium would have to meet the standard that provides the highest degree of access to individuals with disabilities.
ILLUSTRATION 4: A private, nonprofit corporation operates a number of group homes under contract with a State agency for the benefit of individuals with mental disabilities. These particular homes provide a significant enough level of social services to be considered places of public accommodation under title III. The State agency must ensure that its contracts are carried out in accordance with title II, and the private entity mustensure that the homes comply with title III.
II-1.4100 Rehabilitation Act.Title II provides protections to individuals with disabilities that areat least equal to those provided by the nondiscrimination provisions of title V of the Rehabilitation Act. Title V includes such provisions assection 501, which prohibits discrimination on the basis of disability in Federal employment; section 503, which addresses the employment practices of Federal contractors; and section 504, which covers all programs receiving Federal financial assistance and all the operations of Federal Executive agencies. Title II may not be interpreted to provide a lesser degree of protection to individuals with disabilities than is provided under these laws.
II-1.4200 Other Federal and State laws.Title II does not disturb other Federal laws or any State laws that provide protection for individuals with disabilities at a level greateror equal to that provided by the ADA. It does, however, prevail over any conflicting State laws.
Regulatory references: 28 CFR 35.104.
II-2.1000 General. Title II of the ADA prohibits discrimination against any "qualified individual witha disability." Whether a particular individual is protected by title II requires a careful analysis first, of whether an individual is an"individual with a disability," and then whether that individual is"qualified."
People commonly refer to disabilities or disabling conditions in a broad sense. For example, poverty or lack of education may impose real limitations on an individual's opportunities. Likewise, being only five feet in height may prove to be an insurmountable barrier to an individual whose ambition isto play professional basketball. Although one mightloosely characterize these conditions as "disabilities" in relation to the aspirations of the particular individual, the disabilities reached by titleII are limited to those that meet the ADA's legal definition -- those that place substantial limitations on an individual's major life activities.
Title II protects three categories of individuals with disabilities:
1) Individuals who have a physical or mental impairment that substantially limits one or more major life activities;
2)Individuals who have a record of a physical or mental impairment that substantially limited one or more of the individual's major life activities; and
3) Individuals who are regarded as having such an impairment, whether they have the impairment or not.
II-2.2000 Physical or mental impairments.The first category of persons covered by the definition of an individual with a disability is restricted to those with "physical ormental impairments." Physical impairments include --
1) Physiological disorders or conditions;
2) Cosmetic disfigurement; or
3) Anatomical loss
affecting one or more of the following body systems: neurological;musculoskeletal; special sense organs (which would include speech organs thatare not respiratory such as vocal cords, soft palate, tongue, etc.);respiratory, including speech organs; cardiovascular; reproductive;digestive; genitourinary; hemic and lymphatic; skin; and endocrine.
Specific examples of physical impairments include orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, musculardystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV disease(symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.
Mental impairments include mental or psychological disorders, such asmental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
Simple physical characteristics such as the color of one's eyes, hair,or skin; baldness; left-handedness; or age do not constitute physical impairments. Similarly, disadvantages attributable to environmental, cultural, or economic factors are not the type of impairments covered by title II. Moreover, the definition does not include common personality traits such as poor judgment or a quick temper, where these are not symptomsof a mental or psychological disorder.
Does title II prohibit discrimination against individuals based on their sexual orientation? No. The phrase "physical or mental impairment" does not include homosexuality or bisexuality.
II-2.3000 Drug addiction as an impairment. Drug addiction is an impairment under the ADA. A public entity, however, may base a decision to withhold services or benefits in mostcases on the fact that an addict is engaged in the current and illegal use of drugs.
What is "illegal use of drugs"? Illegal use of drugs means the use of one or more drugs, the possession or distribution of which is unlawful under the Controlled Substances Act.It does not include use of controlled substances pursuant to a valid prescription, or other uses that are authorized by the Controlled Substances Act or other Federal law. Alcohol is not a "controlled substance," but alcoholism is a disability.
What is "current use"?"Current use" is the illegal use of controlled substances that occurre drecently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem. Apublic 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.
Does title II protect drug addicts who no longer take controlled substances? Yes. Title II prohibits discrimination against drug addicts based solely on the fact that they previously illegally used controlled substances. Protected individuals include persons who have successfully completed a supervised drug rehabilitation program or have otherwise been rehabilitated successfully and who are not engaging in currentillegal use of drugs. Additionally, discrimination is prohibited against an individual who is currently participating in a supervised rehabilitation program and is not engaging in current illegal use of drugs. Finally, a person who is erroneously regarded as engaging incurrent illegal use of drugs is protected.
Is drug testing permitted under the ADA? Yes. Publicentities may utilize reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging incurrent illegal use of drugs.
II-2.4000 Substantial limitation of a major life activity. To constitute a "disability," a condition must substantially limit a majorlife activity. Major life activities include such activities as caring for one's self, performing manual tasks, walking, seeing, hearing,speaking, breathing, learning, and working.
When does an impairment "substantially limit" a major life activity? There is no absolute standard for determining when an impairment is asubstantial limitation. Some impairments obviously or by their nature substantially limit the ability of an individual to engage in a major life activity.
ILLUSTRATION 1: A person who is deaf is substantially limited in the major life activity of hearing. A person with a minor hearing impairment, onthe other hand, may not be substantially limited.
ILLUSTRATION2: A person with traumatic brain injury may be substantially limited inthe major life activities of caring for one's self, learning, andworking because of memory deficit, confusion, contextual difficulties,and inability to reason appropriately.
An impairment substantially interferes with the accomplishment of a major life activity when the individual's important life activities a rerestricted as to the conditions, manner, or duration under which they can beperformed in comparison to most people.
ILLUSTRATION 1: A person with a minor vision impairment, such as 20/40vision, does not have a substantial impairment of the major life activity ofseeing.
ILLUSTRATION2: A person who can walk for 10 miles continuously is not substantially limited in walking merely because, on the eleventh mile, he or she begins to experience pain, because most people would not be able to walk eleven miles without experiencing some discomfort.
Are "temporary" mental or physical impairments covered by title II? Yes, if the impairment substantially limits a major life activity. The issue of whether a temporary impairment is significant enough to be adisability must be resolved on a case-by-case basis, taking into consideration both the duration (or expected duration) of the impairment and the extent to which it actually limits a major lifeactivity of the affected individual.
ILLUSTRATION: During a house fire, M received burns affecting his hands and arms. While it is expected that, with treatment, M will eventually recover full use of his hands, in the meantime he requires assistance inperforming basic tasks required to care for himself such as eating and dressing. Because M's burns are expected to substantially limit a major lifeactivity (caring for one's self) for a significant period of time, M would beconsidered to have a disability covered by title II.
If a person's impairment is greatly lessened or eliminated through the use of aids or devices, would the person still be considered an individual with a disability? Whether a person has a disability is assessed without regard to the availability of mitigating measures, such as reasonable modifications, auxiliary aids and services, services and devices of a personal nature, or medication. For example, a person with severe hearing loss is substantially limited in the major life activity of hearing, even though the loss may be improved through the use of a hearing aid. Likewise, persons with impairments, such as epilepsy or diabetes, that, if untreated, would substantially limit a major life activity, are still individuals with disabilities under the ADA, even if the debilitating consequences of the impairment are controlled by medication.
II-2.5000 Record of a physical or mental impairment that substantially limited a major life activity. The ADA protects not only those individuals with disabilities whoactually have a physical or mental impairment that substantially limits a major life activity, but also those with a record of such an impairment. This protected group includes --
1) A person who has a history of an impairment that substantially limited a major life activity but who has recovered from the impairment. Examples of individuals who have a history of an impairment are persons who have histories of mental or emotional illness, drug addiction, alcoholism,heart disease, or cancer.
2)Persons who have been misclassified as having an impairment. Examples include persons who have been erroneously diagnosed as mentally retarded or mentally ill.
II-2.6000 "Regarded as." The ADA also protects certain persons who are regarded by a public entity as havinga physical or mental impairment that substantially limits a major lifeactivity, whether or not that person actually has an impairment. Three typical situations are covered by this category:
1) An individual who has a physical or mental impairment that does not substantially limit major life activities, but who is treated as if the impairment does substantially limit a major life activity;
ILLUSTRATION:A, an individual with mild diabetes controlled by medication, is barred by the staff of a county-sponsored summer camp from participation in certain sports because of her diabetes. Even though A does not actually have an impairment that substantially limits a major life activity, sheis protected under the ADA because she is treated as though she does.
2) An individual who has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others towards the impairment;
ILLUSTRATION:B, a three-year old child born with a prominent facial disfigurement,has been refused admittance to a county-run day care program on the grounds that her presence in the program might upset the other children. B is an individual with a physical impairment that substantially limits her major life activities only as the result ofthe attitudes of others toward her impairment.
3) An individual who has no impairments but who is treated by a public entity as having an impairment that substantially limits a major life activity.
ILLUSTRATION:C is excluded from a county-sponsored soccer team because the coach believes rumors that C is infected with the HIV virus. Even though these rumors are untrue, C is protected under the ADA, because he is being subjected to discrimination by the county based on the belief that he has an impairment that substantially limits major life activities (i.e., the belief that he is infected with HIV).
II-2.7000 Exclusions. The following conditions are specifically 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.
II-2.8000 Qualified individual with a disability. In order to be an individual protected by title II, the individual mustbe a "qualified" individual with a disability. To be qualified, theindividual with a disability must meet the essential eligibilityrequirements for receipt of services or participation in a public entity's programs, activities, or services with or without --
1) Reasonable modifications to a public entity's rules, policies, orpractices;
2) Removal of architectural, communication, or transportation barriers; or
3) Provision of auxiliary aids and services.
The "essential eligibility requirements" for participation in many activities of public entities may be minimal. For example, most public entities provide information about their programs, activities, and servicesupon request. In such situations, the only "eligibility requirement" for receipt of such information would be the request for it. However, under other circumstances, the "essential eligibility requirements" imposed by a public entity may be quite stringent.
ILLUSTRATION: The medical school at a public university may require those admitted to its program to have successfully completed specified undergraduate science courses.
Can a visitor, spectator, family member, or associate of a program participant be a qualified individual with a disability under title II? Yes. Title II protects any qualified individual with adisability involved in any capacity in a public entity's programs, activities, or services.
ILLUSTRATION: Public schools generally operate programs and activities that are open to students' parents, such as parent-teacher conferences, school plays, athletic events, and graduation ceremonies. A parent who is a qualified individual with a disability with regard to these activities would be entitled to title II protection.
Can health and safety factors be taken into account in determining who is qualified? Yes. An individual who poses a direct threat to the health or safety of others will not be "qualified."
What is a "direct threat"? 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 the public entity's modification of its policies, practices, or procedures, or by the provision of auxiliary aids or services. The public entity's determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability.
How does one determine whether a direct threat exists? The determination must be based on an individualized assessment that relies on current medical evidence, or on the best available objective evidence, to assess --
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.
Making this assessment will not usually require the services of aphysician. Medical guidance may be obtained from public health authorities, such as the U.S. Public Health Service, the Centers for Disease Control, andthe National Institutes of Health, including the National Institute of MentalHealth.
ILLUSTRATION: An adult individual with tuberculosis wishes to tutorelementary school children in a volunteer mentor program operated by a local public school board. Title II permits the board to refuse to allow the individual to participate on the grounds that the mentor's condition would be a direct threat to the health or safety of the children participating in the program, if the condition is contagious and the threat cannot be mitigated or eliminated by reasonable modifications in policies, practices, or procedures.
Regulatory references: 28 CFR 35.130-35.135.
II-3.1000 General. Most requirements of title II are based on section 504 of the RehabilitationAct of 1973, which prohibits discrimination on the basis of handicap in federally assisted programs and activities. Section 504 also applies to programs and activities "conducted" by Federal Executive agencies. The ADA similarly extends section 504's nondiscrimination requirement toall activities of State and local governments, not only those that receive Federal financial assistance.
Section 504 was implemented in 1977 for federally assisted programs in regulations issued by the Department of Health, Education, and Welfare. Later, other Federal agencies issued their own regulations for the programs and activities that they funded. Public entities should be familiar with those regulations from their experience in applying for Federal grant programs. As mandated by the ADA, the requirements for public entities undertitle II are consistent with and, in many areas, identical to the requirements of the section 504 regulations.
The ADA, however, also mandates that the title II regulations be consistent with the concepts of the ADA. Therefore, the title II regulations include language that is adapted from other parts of the ADA but not specifically found in section 504 regulations.
II-3.2000 Denial of participation.The ADA, like other civil rights statutes, prohibits the denial of services or benefits on specified discriminatory grounds. Just as agovernment office cannot refuse to issue food stamps or other benefits to an individual on the basis of his or her race, it cannot refuse to provide benefits solely because an individual has a disability.
ILLUSTRATION: A city cannot refuse to admit an individual to a city council meeting that is open to the public merely because the individual is deaf.
II-3.3000 Equality in participation/benefits.The ADA provides for equality of opportunity, but does not guarantee equality of results. The foundation of many of the specific requirements in the Department's regulations is the principle that individuals with disabilities must be provided an equally effective opportunity to participate in or benefit from a public entity's aids, benefits, and services.
ILLUSTRATION 1: A deaf individual does not receive an equal opportunity to benefit from attending a city council meeting if he or she does not have access to what is said.
ILLUSTRATION2: An individual who uses a wheelchair will not have an equal opportunity to participate in a program if applications must be filedin a second-floor office of a building without an elevator, because heor she would not be able to reach the office.
ILLUSTRATION3: Use of printed information alone is not "equally effective" for individuals with vision impairments who cannot read written material.
On the other hand, as long as persons with disabilities are afforded an equally effective opportunity to participate in or benefit from a public entity's aids, benefits, and services, the ADA's guarantee of equal opportunity is not violated.
ILLUSTRATION 4: A person who uses a wheelchair seeks to run for a State elective office. State law requires the candidate to collect petition signatures in order to qualify for placement on the primary election ballot. Going door-to-door to collect signatures is difficult or, in many cases,impossible for the candidate because of the general inaccessibility of private homes. The law, however, provides over five months to collect the signatures and allows them to be collected by persons other than the candidate both through the mail and at any site where registered voters congregate. With these features, the law affords an equally effective opportunity for the individual who uses a wheelchair to seek placement on theballot and to participate in the primary election process.
Also, the ADA generally does not require a State or local governmententity to provide additional services for individuals with disabilities thatare not provided for individuals without disabilities.
ILLUSTRATION 5: The ADA does not require a city government to provide snow removal service for the private driveways of residents with disabilities, if the city does not provide such service for residents without disabilities.
Specific requirements for physical access to programs and communications are discussed in detail below, but the general principleunderlying these obligations is the mandate for an equal opportunity toparticipate in and benefit from a public entity's services, programs,and activities.
II-3.4000 Separate benefit/integrated setting. A primary goal of the ADA is the equal participation of individuals with disabilities in the "mainstream" of American society. The major principles of mainstreaming are --
1) Individuals with disabilities must be integrated to the maximumextent appropriate.
2)Separate programs are permitted where necessary to ensure equal opportunity. A separate program must be appropriate to the particular individual.
3) Individuals with disabilities cannot be excluded from the regular program, or required to accept special services or benefits.
II-3.4100 Separate programs. A public entity may offer separate or special programs when necessary to provide individuals with disabilities an equal opportunity to benefit from the programs. Such programs must, however, be specifically designed to meet the needs of the individuals with disabilities for whom they are provided.
ILLUSTRATION 1: Museums generally do not allow visitors to touch exhibits because handling can cause damage to the objects. A municipal museum may offer a special tour for individuals with vision impairments on which they are permitted to touch and handle specific objects on a limited basis. (It cannot, however, exclude a blind person from the standard museumtour.)
ILLUSTRATION 2: A city recreation department may sponsor a separate basketball league for individuals who use wheelchairs.
II-3.4200 Relationship to "program accessibility" requirement.The integrated setting requirement may conflict with the obligation to provide program accessibility, which may not necessarily mandate physical access to all parts of all facilities (see II-5.0000). Provision of services to individuals with disabilities in a different location, for example, is one method of achieving program accessibility. Public entities should make every effort to ensure that alternative methods of providing program access do not result in unnecessary segregation.
ILLUSTRATION: A school system should provide for wheelchair access at schools dispersed throughout its service area so that children who use wheelchairs can attend school at locations comparable in convenience to those available to other children. Also, where "magnet" schools, or schools offering different curricula or instruction techniques are available, therange of choice provided to students with disabilities must be comparable to that offered to other students.
II-3.4300 Right to participate in the regular program. Even if a separate or special program for individuals with disabilitiesis offered, a public entity cannot deny a qualified individual with adisability participation in its regular program. Qualified individuals with disabilities are entitled to participate in regular programs, evenif the public entity could reasonably believe that they cannot benefit from the regular program.
ILLUSTRATION: A museum cannot exclude a person who is blind from a tour because of assumptions about his or her inability to appreciate and benefit from the tour experience. Similarly, a deaf person may not be excluded froma museum concert because of a belief that deaf persons cannot enjoy the music.
The fact that a public entity offers special programs does not affect the right of an individual with a disability to participate in regular programs. The requirements for providing access to the regular program, including the requirement that the individual be "qualified" for the program, still apply.
ILLUSTRATION: Where a State offers special drivers' licenses with limitations or restrictions for individuals with disabilities, an individual with a disability is not eligible for an unrestricted license, unless he or she meets the essential eligibility requirements for the unrestricted license.
BUT: If an individual is qualified for the regular program, he or she cannot be excluded from that program simply because a special program is available.
Individuals with disabilities may not be required to accept special"benefits" if they choose not to do so.
ILLUSTRATION: A State that provides optional special automobile license plates for individuals with disabilities and requires appropriate documentation for eligibility for the special plates cannot require an individual who qualifies for a special plate to present documentation or accept a special plate, if he or she applies for a plate without the special designation.
II-3.4400 Modifications in the regular program. When a public entity offers a special program for individuals with a particular disability, but an individual with that disability elects to participate in the regular program rather than in the separate program, the public entity may still have obligations to provide an opportunity for that individual to benefit from the regular program. The fact that a separate program is offered may be a factor in determining the extent of the obligations under the regular program, but only if the separate program is appropriate to the needs of the particular individual with adisability.
ILLUSTRATION: If a museum provides a sign language interpreter for one of its regularly scheduled tours, the availability of the signed tour may be a factor in determining whether it would be an undue burden to provide an interpreter for a deaf person who wants to take the tour at a different time. BUT: The availability of the signed tour would not affect the museum's obligation to provide an interpreter for a different tour, or the museum's obligation to provide a different auxiliary aid, such as an assistive listening device, for an individual with impaired hearing who does not use sign language.
II-3.5100 General. A public entity may not impose eligibility criteria for participation in its programs, services, or activities that either screen out or tend to screen out persons with disabilities, unless it can show that such requirements are necessary for the provision of the service, program,or activity.
ILLUSTRATION 1: The director of a county recreation program prohibits persons who use wheelchairs from participating in county-sponsored scuba diving classes because he believes that persons who use wheelchairs probably cannot swim well enough to participate. An unnecessary blanket exclusion of this nature would violatethe ADA.
ILLUSTRATION2: A community college requires students with certain disabilities tobe accompanied to class by attendants, even when such individualsprefer to attend classes unaccompanied. The college also requiresindividuals with disabilities to provide extensive medical histories,although such histories are not required from other students. Unlessthe college can demonstrate that it is necessary for some compellingreason to adopt these policies, the policies would not be permitted by the ADA.
II-3.5200 Safety. 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 real risks, not on speculation, stereotypes, or generalizations about individuals with disabilities.
ILLUSTRATION: 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.This is permitted even if requiring such a test would tend to screen out people with certain kinds of disabilities.
ILLUSTRATION: 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 various camp activities.The questionnaire is acceptable, if the recreation department can demonstrate that each piece of information requested is needed to ensure safe participation in camp activities. The Department, however, may not use thisinformation to screen out children with disabilities from admittance to thecamp.
II-3.5400 Surcharges. Although compliance may result in some additional cost, a public entity may not place a surcharge only on particular individuals with disabilities or groups of individuals with disabilities to cover these expenses.
ILLUSTRATION: A community college provides interpreter services to deaf students, removes a limited number of architectural barriers, and relocates inaccessible courses and activities to more accessible locations. The college cannot place a surcharge on either an individual student with a disability (such as a deaf student who benefited from interpreter services)or on groups of students with disabilities (such as students with mobility impairments who benefited from barrier removal). It may, however, adjust its tuition or fees for allstudents.
II-3.6100 General. A public entity must reasonably modify its policies, practices, or procedures to avoid discrimination. If the public entity can demonstrate, however,that the modifications would fundamentally alter the nature of its service, program, or activity, it is not required to make the modification.
ILLUSTRATION 1: A municipal zoning ordinance requires a set-back of 12 feet from the curb in the central business district. In order to install a ramp to the front entrance of a pharmacy, the owner must encroach on the set-back by three feet. Granting a variance in the zoning requirement may be a reasonable modification of town policy.
ILLUSTRATION2: A county general relief program provides emergency food, shelter,and cash grants to individuals who can demonstrate their eligibility. The application process, however, is extremely lengthy and complex. When many individuals with mental disabilities apply for benefits, they are unable to complete the application process successfully. As aresult, they are effectively denied benefits to which they are otherwise entitled. In this case, the county has an obligation to make reasonable modifications to its application process to ensure that otherwise eligible individuals are not denied needed benefits. Modifications to the relief program might include simplifying the application process or providing applicants who have mental disabilities with individualized assistance to complete the process.
ILLUSTRATION3: A county ordinance prohibits the use of golf carts on public highways. An individual with a mobility impairment uses a golf cart as a mobility device. Allowing use of the golf cart as a mobility device on the shoulders of public highways where pedestrians are permitted, in limited circumstances that do not involve a significant risk to the health or safety of others, is a reasonable modification of the county policy.
II-3.6200 Personal services and devices.A public entity is not required to provide individuals with disabilities with personal or individually prescribed devices, such as wheelchairs, prescription eyeglasses, or hearing aids, or to provide services of a personal nature, such as assistance in eating, toileting,or dressing. Of course, if personal services or devices are customarily provided to the individuals served by a public entity, such as a hospital or nursing home, then these personal services should also be provided to individuals with disabilities.
ILLUSTRATION 1: A municipal government may not refuse to contract with acleaning service company to clean its government buildings because the company is owned by an individual with disabilities or employs individuals with disabilities.
II-3.7200 Licensing. A public entity may not discriminate on the basis of disability in its licensing, certification, and regulatory activities. A person is a"qualified individual with a disability" with respect to licensing orcertification, if he or she can meet the essential eligibility requirements for receiving the license or certification. The phrase"essential eligibility requirements" is particularly important in the context of State licensing requirements. While many programs and activities of public entities do not have significant qualification requirements, licensing programs often do require applicants to demonstrate specific skills, knowledge, and abilities. Public entities may not discriminate against qualified individuals with disabilities who apply for licenses, but may consider factors related to the disability in determining whether the individual is "qualified."
ILLUSTRATION: An individual is not "qualified" for a driver's license unless he or she can operate a motor vehicle safely. A public entity may establish requirements, such as vision requirements, that would exclude some individuals with disabilities, if those requirements are essential for the safe operation of a motor vehicle.
BUT: The public entity may only 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.
A public entity does not have to lower or eliminate licensing standards that are essential to the licensed activity to accommodate an individual witha disability. Whether a specific requirement is "essential" will depend on the facts of the particular case. Where a public entity administers licensing examinations, it must provide auxiliary aids for applicants with disabilities and administer the examinations in accessible locations.
In addition, a public entity may not establish requirements for theprograms or activities of licensees that would result in discrimination against qualified individuals with disabilities.For example, a public entity's safety standards may not require the licensee to discriminate against qualified individuals with disabilities in its employment practices.
ILLUSTRATION: A State prohibits the licensing of transportation companies that employ individuals with missing limbs as drivers. XYZ company refuses to hire an individual with a missing limb who is "qualified" to perform the essential functions of the job, because he is able to drive safely with hand controls. The State's licensing requirements violate title II.
BUT: The State is not accountable for discrimination in the employment or other practices of XYZ company, if those practices are not the result of requirements or policies established by the State.
Although licensing standards are covered by title II, the licensee's activities themselves are not covered. An activity does not become a"program or activity" of a public entity merely because it is licensed by the public entity.
II-3.8000 Illegal use of drugs.Discrimination based on an individual's current illegal use of drugs is not prohibited (see II-2.3000). Although individuals currently using illegal drugs are not protected from discrimination, the ADA does prohibit denial of health services, or services provided in connection with drug rehabilitation, to an individual on the basis of current illegal use of drugs, if the individual is otherwise entitled to such services.
ILLUSTRATION 1: A hospital emergency room may not refuse to provide emergency services to an individual because the individual is using drugs.
ILLUSTRATION 2: A municipal medical facility that specializes in care of burn patients may not refuse to treat an individual's burns on the grounds that the individual is illegally using drugs. Because abstention from the use of drugs is an essential condition for participation in some drug rehabilitation programs, and may be a necessary requirement in inpatient or residential settings, a drug rehabilitation or treatment program may deny participation to individuals who use drugs while they are in the program.
ILLUSTRATION: A residential drug and alcohol treatment program mayexpel an individual for using drugs in a treatment center.
II-3.9000 Discrimination on the basis of association. A State or local government may not discriminate against individuals or entities because of their known relationship or association with persons who have disabilities. This prohibition applies to cases where the public entity has knowledge of both the individual's disability and his or her relationship to another individual or entity. In addition to familial relationships, the prohibition covers any type of association between the individual or entity that is discriminated against and the individual or individuals with disabilities, if the discrimination is actually based on the disability.
ILLUSTRATION 1: A county recreation center may not refuse admission to a summer camp program to a child whose brother has HIV disease.
ILLUSTRATION2: A local government could not refuse to allow a theater company touse a school auditorium on the grounds that the company ha srecentlyperformed at an HIV hospice.
ILLUSTRATION 3: If acounty-owned sports arena refuses to admit G, an individual withcerebral palsy, as well as H (his sister) because G has cerebral palsy,the arena would be illegally discriminating against H on the basis ofher association with G.
II-3.10000 Maintenance of accessible features.Public entities must maintain in working order equipment and featuresof facilities that are required to provide ready access to individualswith disabilities. Isolated or temporary interruptions in access due tomaintenance and repair of accessible features are not prohibited.
Where a public entity must provide an accessible route, the route mustremain accessible and not blocked by obstacles such as furniture, filingcabinets, or potted plants. An isolated instance of placement of an objecton an accessible route, however, would not be a violation, if the object ispromptly removed. Similarly, accessible doors must be unlocked when thepublic entity is open for business.
Mechanical failures in equipment such as elevators or automatic doorswill occur from time to time. The obligation to ensure that facilities arereadily accessible to and usable by individuals with disabilities would beviolated, if repairs are not made promptly or if improper or inadequatemaintenance causes repeated and persistent failures.
ILLUSTRATION 1: It would be a violation for a building manager of athree-story building to turn off the only passenger elevator in order to saveenergy during the hours when the building is open.
ILLUSTRATION2: A public high school has a lift to provide access for persons withmobility impairments to an auditorium stage. The lift is not working.If the lift normally is functional and reasonable steps have been takento repair the lift, then the school has not violated its obligations tomaintain accessible features. On the other hand, if the lift frequentlydoes not work and reasonable steps have not been taken to maintain thelift, then the school has violated the maintenance of accessiblefeatures requirement.
ILLUSTRATION 3: Because oflack of space, a city office manager places tables and file cabinets inthe hallways, which interferes with the usability of the hallway byindividuals who use wheelchairs. By rendering a previously accessiblehallway inaccessible, the city has violated the maintenancerequirement, if that hallway is part of a required accessible route.
II-3.11000 Retaliation or coercion.Individuals who exercise their rights under the ADA, or assist othersin exercising their rights, are protected from retaliation. Theprohibition against retaliation or coercion applies broadly to anyindividual or entity that seeks to prevent an individual fromexercising his or her rights or to retaliate against him or her forhaving exercised those rights. Any form of retaliation or coercion,including threats, intimidation, or interference, is prohibited if itinterferes with the exercise of rights under the Act.
ILLUSTRATION 1: A, a private individual, harasses X, an individual withcerebral palsy, in an effort to prevent X from attending a concert in a Statepark. A has violated the ADA.
ILLUSTRATION2: A State tax official delays a tax refund for M, because M testifiedin a title II grievance proceeding involving the inaccessibility of thetax information office. The State has illegally retaliated against M inviolation of title II.
Regulatory references: 28 CFR 35.140.
II-4.1000 General. BeginningJanuary 26, 1992, title II prohibits all public entities, regardless ofsize of workforce, from discriminating in their employment practicesagainst qualified individuals with disabilities.
II-4.2000 Relationship among title IIand other Federal laws that prohibit employment discrimination bypublic entities on the basis of disability. In addition to titleII's employment coverage, title I of the ADA and section 504 of theRehabilitation Act of 1973 prohibit employment discrimination againstqualified individuals with disabilities by certain public entities.Title I of the ADA, which is primarily enforced by the Equal EmploymentOpportunity Commission (EEOC), prohibits job discrimination --
1) Effective July 26, 1992, by State and local employers with 25 ormore employees; and
2)Effective July 26, 1994, by State and local employers with 15 or moreemployees. Section 504 of the Rehabilitation Act prohibitsdiscrimination in employment in programs or activities that receiveFederal financial assistance, including federally funded State or localprograms or activities. Each Federal agency that extends financialassistance is responsible for enforcement of section 504 in theprograms it funds.
What standards are used to determine compliance under title II?For those public entities that are subject to title I of the ADA, titleII adopts the standards of title I. In all other cases, the section 504standards for employment apply. On October 29, 1992, legislationreauthorizing the Rehabilitation Act of 1973 was signed by thePresident. The law amended section 504 to conform its provisionsbarring employment discrimination to those applied under title I of theADA. Thus, employment standards under section 504 are now identical tothose under title I.
II-4.3000 Basic employment requirements.The following sections set forth examples of the basic title IIemployment requirements. Additional information on employment issues isavailable in "A Technical Assistance Manual on the EmploymentProvisions (Title I) of the Americans with Disabilities Act," issued bythe EEOC. (For information about obtaining this document or otherinformation about title I, contact the EEOC at 800-669- 3362 (voice) or800-800-3302 (TDD)).
II-4.3100 Nondiscriminatory practices and policies.As of January 26, 1992, all public entities must ensure that theiremployment practices and policies do not discriminate on the basis ofdisability against qualified individuals with disabilities in everyaspect of employment, including recruitment, hiring, promotion,demotion, layoff and return from layoff, compensation, job assignments,job classifications, paid or unpaid leave, fringe benefits, training,and employer- sponsored activities, including recreational or socialprograms.
II-4.3200 Reasonable accommodation.All public entities must make "reasonable accommodation" to the knownphysical or mental limitations of otherwise qualified applicants oremployees with disabilities, unless the public entity can show that theaccommodation would impose an "undue hardship" on the operation of itsprogram.
"Reasonable accommodation" means any change or adjustment to a job orwork environment that permits a qualified applicant or employee with adisability to participate in the job application process, to perform theessential functions of a job, or to enjoy benefits and privileges ofemployment equal to those enjoyed by employees without disabilities.Examples include --
1) Acquiring or modifying equipment or devices;
2) Job restructuring;
3) Part-time or modified work schedules;
4) Providing readers or interpreters;
5) Making the workplace accessible to and usable by individuals with disabilities.
However, any particular change or adjustment would not be required if,under the circumstances involved, it would result in an undue hardship.
"Undue hardship" means significant difficulty or expense relative to theoperation of a public entity's program. Where a particular accommodationwould result in an undue hardship, the public entity must determine ifanother accommodation is available that would not result in an unduehardship.
II-4.3300 Nondiscrimination in selection criteria and the administration of tests.Public entities may not use employment selection criteria that have theeffect of subjecting individuals with disabilities to discrimination.In addition, public entities are required to ensure that, wherenecessary to avoid discrimination, employment tests are modified sothat the test results reflect job skills or aptitude or whatever thetest purports to measure, rather than the applicant's or employee'shearing, visual, speaking, or manual skills (unless the test isdesigned to measure hearing, visual, speaking, or manual skills).
II-4.3400 Preemployment medical examinations and medical inquiries.During the hiring process, public entities may ask about an applicant'sability to perform job-related functions but may not ask whether anapplicant is disabled or about the nature or severity of an applicant'sdisability.
Public entities may not conduct preemployment medical examinations, butthey may condition a job offer on the results of a medical examinationconducted prior to an individual's entrance on duty if --
1) All entering employees in the same job category, regardless ofdisability, are required to take the same medical examination, and
2) The results of the medical examination are not used to impermissibly discriminate on the basis of disability.
The results of a medical entrance examination must be kept confidentialand maintained in separate medical files.
Regulatory references: 28 CFR 35.149-35.150.
II-5.1000 General. A publicentity may not deny the benefits of its programs, activities, andservices to individuals with disabilities because its facilities areinaccessible. A public entity's services, programs, or activities, whenviewed in their entirety, must be readily accessible to and usable byindividuals with disabilities. This standard, known as "programaccessibility," applies to all existing facilities of a public entity.Public entities, however, are not necessarily required to make each oftheir existing facilities accessible.
ILLUSTRATION 1: When a city holds a public meeting in an existingbuilding, it must provide ready access to, and use of, the meeting facilitiesto individuals with disabilities. The city is not required to make all areasin the building accessible, as long as the meeting room is accessible.Accessible telephones and bathrooms should also be provided where theseservices are available for use of meeting attendees.
ILLUSTRATION2: D, a defendant in a civil suit, has a respiratory condition thatprevents her from climbing steps. Civil suits are routinely heard in acourtroom on the second floor of the courthouse. The courthouse has noelevator or other means of access to the second floor. The publicentity must relocate the proceedings to an accessible ground floorcourtroom or take alternative steps, including moving the proceedingsto another building, in order to allow D to participate in the civilsuit.
ILLUSTRATION 3: A State provides ten restareas approximately 50 miles apart along an interstate highway. Programaccessibility requires that an accessible toilet room for each sex withat least one accessible stall, or a unisex bathroom, be provided ateach rest area.
Is a public entity relieved of its obligation to make itsprograms accessible if no individual with a disability is known to livein a particular area? No. The absence of individuals withdisabilities living in an area cannot be used as the test of whetherprograms and activities must be accessible.
ILLUSTRATION: A rural school district has only one elementary school and itis located in a one-room schoolhouse accessible only by steps. The schoolboard asserts that there are no students in the district who use wheelchairs.Students, however, who currently do not have a disability may becomeindividuals with disabilities through, for example, accidents or disease. Inaddition, persons other than students, such as parents and other schoolvisitors, may be qualified individuals with disabilities who are entitled toparticipate in school programs. Consequently, the apparent lack of studentswith disabilities in a school district's service area does not excuse theschool district from taking whatever appropriate steps are necessary toensure that its programs, services, and activities are accessible toqualified individuals with disabilities.
Can back doors and freight elevators be used to satisfy the program accessibility requirement? Yes,but only as a last resort and only if such an arrangement providesaccessibility comparable to that provided to persons withoutdisabilities, who generally use front doors and passenger elevators.For example, a back door is acceptable if it is kept unlocked duringthe same hours the front door remains unlocked; the passageway to andfrom the floor is accessible, well-lit, and neat and clean; and theindividual with a mobility impairment does not have to travel excessivedistances or through nonpublic areas such as kitchens and storerooms togain access. A freight elevator would be acceptable if it were upgradedso as to be usable by passengers generally and if the passagewaysleading to and from the elevator are well-lit and neat and clean.
Are there any limitations on the program accessibility requirement?Yes. A public entity does not have to take any action that it candemonstrate would result in a fundamental alteration in the nature ofits program or activity or in undue financial and administrativeburdens. This determination can only be made by the head of the publicentity or his or her designee and must be accompanied by a writtenstatement of the reasons for reaching that conclusion. Thedetermination that undue burdens would result must be based on allresources available for use in the program. If an action would resultin such an alteration or such burdens, the public entity must take anyother action that would not result in such an alteration or suchburdens but would nevertheless ensure that individuals withdisabilities receive the benefits and services of the program oractivity.
II-5.2000 Methods for providing program accessibility.Public entities may achieve program accessibility by a number ofmethods. In many situations, providing access to facilities throughstructural methods, such as alteration of existing facilities andacquisition or construction of additional facilities, may be the mostefficient method of providing program accessibility. The public entitymay, however, pursue alternatives to structural changes in order toachieve program accessibility. Nonstructural methods includeacquisition or redesign of equipment, assignment of aides tobeneficiaries, and provision of services at alternate accessible sites.
ILLUSTRATION 1: The office building housing a public welfare agency mayonly be entered by climbing a flight of stairs. If an individual with amobility impairment seeks information about welfare benefits, the agency canprovide the information in an accessible ground floor location or in anotheraccessible building.
ILLUSTRATION2: A public library's open stacks are located on upper floors having noelevator. As an alternative to installing a lift or elevator, librarystaff may retrieve books for patrons who use wheelchairs. The aidesmust be available during the operating hours of the library.
ILLUSTRATION3: A public university that conducts a French course in an inaccessiblebuilding may relocate the course to a building that is readilyaccessible.
When choosing a method of providing programaccess, a public entity must give priority to the one that results inthe most integrated setting appropriate to encourage interaction amongall users, including individuals with disabilities.
ILLUSTRATION:A rural, one-room library has an entrance with several steps. Thelibrary can make its services accessible in several ways. It mayconstruct a simple wooden ramp quickly and at relatively low cost.Alternatively, individuals with mobility impairments may be providedaccess to the library's services through a bookmobile, by specialmessenger service, through use of clerical aides, or by any othermethod that makes the resources of the library "readily accessible."Priority should be given, however, to constructing a ramp because thatis the method that offers library services to individuals withdisabilities and others in the same setting.
Is carrying an individual with a disability considered an acceptable method of achieving program access?Generally, it is not. Carrying persons with mobility impairments toprovide program accessibility is permitted in only two cases. First,when program accessibility in existing facilities can be achieved onlythrough structural alterations (that is, physical changes to thefacilities), carrying may serve as a temporary expedient untilconstruction is completed. Second, carrying is permitted in manifestlyexceptional cases if (a) carriers are formally instructed on the safestand least humiliating means of carrying and (b) the service is providedin a reliable manner. Carrying is contrary to the goal of providingaccessible programs, which is to foster independence.
How is "program accessibility" under title II different than "readily achievable barrier removal" under title III?Unlike private entities under title III, public entities are notrequired to remove barriers from each facility, even if removal isreadily achievable. A public entity must make its "programs"accessible. Physical changes to a building are required only when thereis no other feasible way to make the program accessible.
In contrast, barriers must be removed from places of publicaccommodation under title III where such removal is "readily achievable,"without regard to whether the public accommodation's services can be madeaccessible through other methods.
II-5.3000 Curb ramps. Publicentities that have responsibility or authority over streets, roads, orwalkways must prepare a schedule for providing curb ramps wherepedestrian walkways cross curbs. Public entities must give priority towalkways serving State and local government offices and facilities,transportation, places of public accommodation, and employees, followedby walkways serving other areas. This schedule must be included as partof a transition plan (see II-8.3000).
To promote both efficiency and accessibility, public entities may chooseto construct curb ramps at every point where a pedestrian walkway intersectsa curb. However, public entities are not necessarily required to construct acurb ramp at every such intersection.
Alternative routes to buildings that make use of existing curbcuts may be acceptable under the concept of program accessibility inthe limited circumstances where individuals with disabilities need onlytravel a marginally longer route. In addition, the fundamentalalteration and undue burdens limitations may limit the number of curbramps required. To achieve or maintain program accessibility, it may beappropriate to establish an ongoing procedure for installing curb rampsupon request in areas frequented by individuals with disabilities asresidents, employees, or visitors.
What are walkways? Pedestrian walkways include locationswhere access is required for use of public transportation, such as busstops that are not located at intersections or crosswalks.
II-5.5000 Historic preservation programs.Special program accessibility requirements and limitations apply tohistoric preservation programs. Historic preservation programs areprograms conducted by a public entity that have preservation ofhistoric properties as a primary purpose. An historic property is aproperty that is listed or eligible for listing in the NationalRegister of Historic Places or a property designated as historic underState or local law.
In achieving program accessibility in historic preservation programs, apublic entity must give priority to methods that provide physical access toindividuals with disabilities. Physical access is particularly important inan historic preservation program, because a primary benefit of the program isuniquely the experience of the historic property itself.
Are there any special limitations on measures required toachieve program accessibility in historic preservation programs inaddition to the general fundamental alteration / undue financial andadministrative burdens limitations? Yes, a public entity is notrequired to take any action that would threaten or destroy the historicsignificance of an historic property. In cases where physical accesscannot be provided because of either this special limitation, orbecause an undue financial burden or fundamental alteration wouldresult, alternative measures to achieve program accessibility must beundertaken.
ILLUSTRATION: Installing an elevator in an historic house museum toprovide access to the second floor bedrooms would destroy architecturalfeatures of historic significance on the first floor. Providing anaudio-visual display of the contents of the upstairs rooms in an accessiblelocation on the first floor would be an alternative way of achieving programaccessibility.
Does the special limitation apply to programs that are nothistoric preservation programs, but just happen to be located inhistoric properties? No. In these cases, nonstructural methods ofproviding program accessibility, such as relocating all or part of aprogram or making home visits, are available to ensure accessibility,and no special limitation protecting the historic structure isprovided.
II-5.6000 Time periods for achieving program accessibility.Public entities must achieve program accessibility by January 26, 1992.If structural changes are needed to achieve program accessibility, theymust be made as expeditiously as possible, but in no event later thanJanuary 26, 1995. This three-year time period is not a grace period;all changes must be accomplished as expeditiously as possible. A publicentity that employs 50 or more persons must develop a transition planby July 26, 1992, setting forth the steps necessary to complete suchchanges. For guidance on transition plan requirements, see II-8.3000.
Regulatory references: 28 CFR 35.151.
II-6.1000 General. All facilitiesdesigned, constructed, or altered by, on behalf of, or for the use of apublic entity must be readily accessible and usable by individuals withdisabilities, if the construction or alteration is begun after January26, 1992.
What is "readily accessible and usable?" This means thatthe facility must be designed, constructed, or altered in strictcompliance with a design standard. The regulation gives a choice of twostandards that may be used (see II-6.2000).
II-6.2100 General. Publicentities may choose from two design standards for new construction andalterations. They can choose either the Uniform Federal AccessibilityStandards (UFAS) or the Americans with Disabilities Act AccessibilityGuidelines for Buildings and Facilities (ADAAG), which is the standardthat must be used for public accommodations and commercial facilitiesunder title III of the ADA. If ADAAG is chosen, however, publicentities are not entitled to the elevator exemption (which permitscertain buildings under three stories or under 3,000 square feet perfloor to be constructed without an elevator).
Many public entities that are recipients of Federal funds are alreadysubject to UFAS, which is the accessibility standard referenced in mostsection 504 regulations.
On December 21, 1992, the Access Board published proposed title IIaccessibility guidelines that will generally adopt ADAAG for State and localgovernment facilities. The proposed guidelines also set specificrequirements for judicial, legislative, and regulatory facilities; detentionand correctional facilities; accessible residential housing; and publicrights-of-way. The proposed guidelines are subject to a 90-day commentperiod. It is anticipated that the Department of Justice will amend itstitle II rule to eliminate the choice between ADAAG and UFAS and, instead,mandate that public entities follow the amended ADAAG.
Which standard is stricter, UFAS or ADAAG? The manydifferences between the standards are highlighted below. In some areas,UFAS may appear to be more stringent. In other areas ADAAG may appearto be more stringent. Because of the many differences, one standard isnot stricter than the other.
Can a public entity follow ADAAG on one floor of a new building and then follow UFAS on the next floor? No. Each facility or project must follow one standard completely.
Can a public entity follow UFAS for one alteration projectand then follow ADAAG for another alteration project in the samebuilding? No. All alterations in the same building must be done in accordance with the same standard.
ADAAG: Requires that areas used only by employees as work areas bedesigned and constructed so that individuals with disabilities can approach,enter, and exit the areas. There is, then, only a limited application of thestandards to work areas (§4.1.1(3)).
UFAS:Contains no special limited requirement for work areas. The UFASstandards apply (as provided in the Architectural Barriers Act) in allareas frequented by the public or which "may result in employment ...of physically handicapped persons" (§1).
ADAAG: Departures from particular standards are permitted wherealternatives will provide substantially equivalent or greater access(§2.2).
UFAS:UFAS itself does not contain a statement concerning equivalentfacilitation. However, section 504 regulations, as well as theDepartment's title II regulation (28 CFR 35.151(c)), state thatdepartures are permitted where it is "clearly evident that equivalentaccess" is provided.
ADAAG: Contains a structural impracticability exception for newconstruction: full compliance with the new construction standards is notrequired in the rare case where the terrain prevents compliance(§4.1.1(5)(a)).
UFAS: Does not contain a structural impracticability exception (or any other exception) for new construction.
ADAAG: For alterations, application of standards is not required whereit would be "technically infeasible" (i.e., where application of thestandards would involve removal of a load-bearing structural member or whereexisting physical or site restraints prevent compliance). Cost is not afactor (§4.1.6(1)(j)).
UFAS:Application of standards is not required for alterations where"structurally impracticable," i.e., where removal of a load-bearingstructural member is involved or where the result would be an increasedcost of 50 percent or more of the value of the element involved(§§4.1.6(3); 3.5 ("structural impractibility")). Cost is a factor.(Note that the similar term, "structural impracticability," is used inADAAG (see item #3 above), but in ADAAG it is used in relation to newconstruction. In UFAS, it is used in relation to alterations, and ithas a different meaning.)
ADAAG: Alterations to primary function areas (where major activitiestake place) trigger a "path of travel" requirement, that is, a requirement tomake the path of travel from the entrance to the altered area -- andtelephones, restrooms, and drinking fountains serving the altered area --accessible (§4.1.6(2)). But, under the Department of Justice title IIIrule, a public entity is not required to spend more than 20% of the cost ofthe original alteration on making the path of travel accessible, even if thiscost limitation results in less thanfull accessibility (28 CFR 36.403(f)).
UFAS: If a building undergoes a "substantial alteration" (where thetotal cost of all alterations in a 12-month period amounts to 50% or more ofthe value of the building), the public entity must provide an accessibleroute from public transportation, parking, streets, and sidewalks to allaccessible parts of the building; an accessible entrance; and accessiblerestrooms (§4.1.6(3)).
ADAAG: Each addition to an existing building is regarded as analteration subject to the ADAAG alterations requirements (includingtriggering of path of travel obligations, if applicable). If the additiondoes not have an accessible entrance, the path of travel obligation mayrequire an accessible route from the addition through the existing building,including its entrance and exterior approaches, subject to the 20%disproportionality limitation. Moreover, to the extent that a space orelement is newly constructed as part of an addition, it is also regarded asnew construction and must comply with the applicable new constructionprovisions of ADAAG (§4.1.5).
UFAS:Has specific requirements for additions, including requirements forentrances, routes, restrooms, and common areas. An accessible routefrom the addition through the existing building, including itsentrance, is required if the addition does not have an accessibleentrance (§4.1.5).
ADAAG: One in every eightaccessible spaces must be wide enough and high enough for a van lift tobe deployed. The space must be marked as "van accessible" with asupplementary sign. Alternatively, "universal parking" is permitted, inwhich all spaces can accommodate van widths (§4.1.2(5)(b)).
UFAS: Van parking is not required. Universal parking is not addressed.
ADAAG: Facilities with valet parking must have an accessible passengerloading zone on an accessible route to the exterior of the facility(§4.1.2(5)(e)).
UFAS: No requirements for valet parking.
* Signsdesignating permanent rooms and spaces (men's and women's rooms; roomnumbers; exit signs) must have raised and Brailled letters; must complywith finish and contrast standards; and must be mounted at a certainheight and location (§4.1.3(16)(a)).
* Signs that providedirection to or information about functional spaces of a building (e.g."cafeteria this way;" "copy room") need not comply with requirementsfor raised and Brailled letters, but they must comply with requirementsfor character proportion, finish, and contrast. If suspended orprojected overhead, they must also comply with character heightrequirements (§4.1.3(16)(b)).
* Building directories andother signs providing temporary information (such as current occupant'sname) do not have to comply with any ADAAG requirements (§4.1.3(16)).
*Has requirements not only for the standard international symbol ofaccessibility, but also for symbols of accessibility identifying volumecontrol telephones, text telephones, and assistive listening systems(§§4.1.2(7); 4.30.7).
* Signs designatingpermanent rooms and spaces must be raised (Braille is not required) andmust be mounted at a certain height and location (§4.1.2(15)).
*All other signs (including temporary signs) must comply withrequirements for letter proportion and color contrast, but not withrequirements for raised letters or mounting height (§4.1.2(15)).
* Requires only the standard international symbol of accessibility (§4.30.5).
ADAAG: At least 50 percent of all public entrances must be accessiblewith certain qualifications. In addition, there must be accessible entrancesto enclosed parking, pedestrian tunnels, and elevated walkways(§4.1.3(8)).
UFAS:At least one principal entrance at each grade floor level must beaccessible. In addition, there must be an accessible entrance totransportation facilities, passenger loading zones, accessible parking, taxis, streets, sidewalks, and interior accessible areas, if the building has entrances that normally serve those functions (§4.1.2(8)). (This latter requirement could result in all entrances having to beaccessible in many cases.)
ADAAG: Areas of rescue assistance (safe areas in which to await help inan emergency) are generally required on each floor, other than the groundfloor, of a multistory building. An accessible egress route or an area of rescue assistance is required for each exit required by the local fire code. Specific requirements are provided for such features as location, size,stairway width, and two-way communications. Areas of rescue assistance arenot required in buildings with supervised automatic sprinkler systems, norare they required in alterations (§4.1.3(9)).
UFAS:Accessible routes must serve as a means of egress or connect to an accessible "place of refuge." No specific requirements for places ofrefuge are included. Rather, UFAS refers to local administrative authority for specific provisions on location, size, etc. UFAS requires more than one means of accessible egress when more than one exit is required (§4.3.10).
ADAAG: Where there is more than one fountain on a floor, 50% must be accessible to persons using wheelchairs. If there is only one drinking fountain on a floor, it must be accessible both to individuals who use wheelchairs and to individuals who have trouble bending or stooping (for example, a "hi-lofountain" or fountain and water cooler may be used) (§4.1.3(10)).
UFAS: Approximately 50% on each floor must be accessible. If there is only one fountain on a floor, it must be accessible to individuals who use wheelchairs (§4.1.3(9)).
ADAAG: One of each type of fixed storage facility must be accessible. Self-service shelves and displays must be on an accessible route but need not comply with reach-range requirements (§4.1.3(12)).
UFAS:Has the same requirements as ADAAG for fixed storage, but does not contain the reach requirement exemption for self-service shelves and displays (§4.1.2(11)).
ADAAG: All accessible public phones must be equipped with volume controls. In addition, 25%, but never less than one, of all other public phones must have volume controls (§4.1.3(17)(b)).
UFAS: At least one accessible telephone must have a volume control (§4.1.2(16)(b)).
ADAAG: One TDD (also known as a "text telephone") must be provided inside any building that has at least one interior pay phone and four or more public pay telephones, counting both interior and exterior phones. In addition, one TDD or text telephone (per facility) must be provided whenever there is an interior public pay phone in a stadium or arena; convention center; hotel with a convention center; covered shopping mall; or hospital emergency, recovery, or waiting room (§4.1.3(17)(c)).
UFAS: No requirement for TDD's.
* Wheelchair seating:Requirements triggered in any assembly area with fixed seating that seats four or more people. The number of wheelchair locations required depends upon the size of the assembly area. When the area has over 300 seats, there are requirements for dispersal of wheelchair seating. ADAAG also contains requirements for aisle seats without armrests (orwith removable armrests) and fixed seating for companions located adjacent to each wheelchair seating area (§4.1.3(19)(a)).
* Assistive listening systems:Certain fixed seating assembly areas that accommodate 50 or more peopleor have audio-amplification systems must have permanently installed assistive listening systems. Other assembly areas must have permanent systems or an adequate number of electrical outlets or other wiring to support a portable system. A special sign indicating the availabilityof the system is required. The minimum number of receivers must be equal to four percent of the total number of seats, but never less than two (§4.1.3(19)(b)).
* Wheelchair seating:No requirements for wheelchair seating are triggered, unless the assembly area has 50 or more seats. Seating must be dispersed and provide comparable lines of sight (§4.1.2(18)(a)).
* Assistive listening systems:Assembly areas with audio-amplification systems must have a listening system that serves a reasonable number of people, but at least two. If it has no amplification system or is used primarily as meeting or conference room, it must have a permanent or portable system. Nospecial signs are required (§4.1.2(18)(b)).
ADAAG: Where ATM's are provided, each must be accessible, except thatonly one need comply when two or more ATM's are at the same location. Accessible machines must have, among other features, accessible controls and instructions and other information accessible to persons with sightimpairments (§4.1.3(20)).
UFAS: No requirements for ATM's.
ADAAG: Every public and common use bathroom must be accessible. Generally only one stall must be accessible (standard five-by-five feet). When there are six or more stalls, there must be one accessible stall and onestall that is three feet wide (§§4.1.3(11); 4.22.4).
UFAS: Same general requirements but no requirement for an additional three-foot-wide stall (§§4.1.2(10); 4.22.4).
ADAAG: Required on curb ramps, hazardous vehicular areas, and reflecting pools, but not on doors to hazardous areas. The warnings must be truncated domes (§4.29).
UFAS:"Tactile warnings" (uses different terminology) required only on doors to hazardous areas. Must be a textured surface on the door handle or hardware (§4.29).
ADAAG: Same standards for carpet and carpet tile: maximum pile height of 1/2" (§4.5.3).
UFAS:Carpet must have maximum pile height of 1/2". Carpet tile must havemaximum combined thickness of pile, cushion, and backing height of 1/2"(§4.5.3).
ADAAG: Curb ramps must have detectable warnings (which must be raised truncated domes) (§4.7.7).
UFAS: No requirement for detectable warnings on curb ramps.
ADAAG: Must have raised and Brailled characters (§§4.10.5;4.10.12).
UFAS: Must have raised characters; no requirement for Braille (§§4.10.5; 4.10.12).
ADAAG: Contains details about features required on visual alarms for individuals with hearing impairments, including type of lamp, color, intensity, and location. Flash rate must be at a minimum of 1Hz and maximumof 3Hz (§4.28.3).
UFAS: Contains much less detail. Allows faster flash rate of up to 5Hz (§4.28.3).
ADAAG: The elevator exemption for two-story places of public accommodation or commercial facilities does not apply to buildings and facilities subject to title II. Therefore, elevators are required in all new multilevel buildings or facilities, but vertical access to elevator pits, elevator penthouses, mechanical rooms, and piping or equipment catwalks is not required. Platform lifts may be used instead of elevators under certainconditions in new construction and may always be used in alterations(§4.1.3(5)). Individuals must be able to enter unassisted, operate, andexit the lift without assistance (4.11.3).
UFAS:Has same general requirement for elevators and exceptions similar tothose in ADAAG. Platform lifts may be substituted for elevators in newconstruction or alterations "if no other alternative is feasible"(§4.1.2(5)). Lifts must facilitate unassisted entry and exit (but not"operation" of the lift as in ADAAG) (§4.11.3).
ADAAG: Contains procedures for buildings eligible for listing in the National Register of Historic Places under the National Historic Preservation Act and for historic buildings designated under State or local law(§4.1.7).
UFAS:Contains requirements for buildings eligible for listing in theNational Register of Historic Places under the National HistoricPreservation Act that are also subject to the Architectural BarriersAct. UFAS does not contain provisions applicable to buildings andfacilities that are designated as "historic" under State or local law.(Under title II, the UFAS provisions may be applied to any building that is eligible for listing on the National Register of Historic Places, regardless of whether it is also subject to the Architectural Barriers Act.) (§4.1.7).
* Hotels, motels, dormitories, and other similar establishments:Four percent of the first 100 rooms and approximately two percent of rooms in excess of 100 must be accessible to both persons with hearing impairments (i.e., contain visual alarms, visual notification devices,volume-control telephones, and an accessible electrical outlet for atext telephone) and to persons with mobility impairments. Moreover, a similar percentage of additional rooms must be accessible to persons with hearing impairments. In addition, where there are more than 50 rooms, approximately one percent of rooms must be accessible rooms witha special roll-in/transfer shower. There are special provisions foralterations (§§9.1-9.4).
* Homeless shelters, halfway houses, and similar social service establishments:Homeless shelters and other social service entities must provide the same percentage of accessible sleeping accommodations as above. At least one type of amenity in each common area must be accessible.Alterations are subject to less stringent standards (§9.5).
UFAS:Contains requirements for residential occupancies with technical requirements for "dwelling units." No requirements for sleeping rooms for individuals with hearing impairments. No requirements for roll-inshowers as in ADAAG. No standards for alterations (§§4.1.4(11); 4.34).
ADAAG: In restaurants, generally all dining areas and five percent of fixed tables (but not less than one) must be accessible. While raised or sunken dining areas must be accessible, inaccessible mezzanines are permitted under certain conditions. Contains requirements for counters and bars,access aisles, food service lines, tableware and condiment areas, raised speaker's platforms, and vending machine areas (but not controls). Contains some less stringent requirements for alterations (§5).
UFAS:Less detailed requirements. Does not address counters and bars. Raised platforms are allowed if same service and decor are provided. Vendingmachines and controls are covered. No special, less stringent requirements for alterations (§5).
ADAAG: In medical care facilities, all public and common use areas must be accessible. In general purpose hospitals and in psychiatric and detoxification facilities, 10 percent of patient bedrooms and toilets must be accessible. The required percentage is 100 percent for special facilities treating conditions that affect mobility, and 50 percent for long-term carefacilities and nursing homes. Uses terms clarified by the Department of Health and Human Services to describe types of facilities. Some descriptive information was added. Contains special, less stringent requirements for alterations (§6). UFAS: Uses different terms to describe types of facilities. Required clearances in rooms exceed ADAAG requirements. No special, less stringent requirements for alterations (§6).
*At least one of each type of sales or service counter where a cashregister is located must be accessible. Accessible counters must be dispersed throughout the facility. Auxiliary counters are permissible in alterations (§7.2(1)).
* At counters without cashregisters, such as bank teller windows and ticketing counters, three alternatives are possible: (1) a portion of the counter may be lowered,(2) an auxiliary counter may be provided, or (3) equivalent facilitation may be provided by installing a folding shelf on the front of a counter to provide a work surface for a person using a wheelchair(§7.2(2)).
* At least one of each design of check-out aisle must be accessible, and, in many cases, additional check-out aisles are required to be accessible (i.e., from 20 to 40percent) depending on the number of check-out aisles and the size ofthe facility. There are less stringent standards for alterations(§7.3).
Muchless detail. At service counters, must provide an accessible portion ofthe counter or a nearby accessible counter. At least one check-outaisle must be accessible (§7).
ADAAG: No scoping requirements indicating how many cells need to be accessible.
UFAS: Five percent of residential units in jails, prisons, reformatories, and other detention or correctional facilities must be accessible (§4.1.4(9)(c)).
II-6.4000 Leased buildings.Public entities are encouraged, but not required, to lease accessible space. The availability of accessible private commercial space will steadily increase over time as the title III requirements for new construction and alterations take effect. Although a public entity is not required to lease accessible space, once it occupies a facility, it must provide access to all of the programs conducted in that space (seeII-5.0000). Thus, the more accessible the space is to begin with, the easier and less costly it will be later on to make programs availableto individuals with disabilities and to provide reasonable accommodations for employees who may need them.
II-6.5000 Alterations to historic properties. Alterations to historic properties must comply with the specific provisions governing historic properties in ADAAG or UFAS, to the maximum extent feasible. Under those provisions, alterations should bedone in full compliance with the alterations standards for other types of buildings. However, if following the usual standards would threaten or destroy the historic significance of a feature of the building, alternative standards may be used. The decision to use alternative standards for that feature must be made in consultation with the appropriate historic advisory board designated in ADAAG or UFAS, andinterested persons should be invited to participate in the decisionmaking process.
What are "historic properties?" These are properties listed or eligible for listing in the National Register of Historic Places, or properties designated as historic under State or local law.
What are the alternative requirements? The alternative requirements for historic buildings or facilities provide a minimal level of access. For example --
1) An accessible route is only required from one site access point(such as the parking lot).
2) A ramp may be steeper than is ordinarily permitted.
3) The accessible entrance does not need to be the one used by the general public.
4) Only one accessible toilet is required and it may be unisex.
5) Accessible routes are only required on the level of the accessible entrance.
But what if complying with even these minimal alternative requirements will threaten or destroy the historic significance? Insuch a case, which is rare, the public entity need not make the structural changes required by UFAS or ADAAG. But, if structural modifications that comply with UFAS or ADAAG cannot be undertaken, the Department's regulation requires that "program accessibility" be provided.
ILLUSTRATION: A town owns a one-story historic house and decides to make certain alterations in it so that the house can be used as a museum.The town architect concludes that most of the normal standards for alterations can be applied during the renovation process without threatening or destroying historic features. There appears, however, to be a problem if one of the interior doors is widened, because historic decorative features on the door might be destroyed. The town architect consults the standards and determines that the appropriate historic body with jurisdiction over the particular historic home is the State Historic Preservation Officer. The architect then sets up a meeting with that officer, to which the local disability group and the designated title II coordinator are invited. At the meeting the participants agree with the town architect's conclusion that the normal alterations standards cannot be applied to the interior door. They then review the special alternative requirements, which require an accessible route throughout the level of the accessible entrance. The meeting participants determine that application of the alternative minimal requirements is likewise not possible. In this situation, the town is not required to widen the interior door. Instead, the town provides access tothe program offered in that room by making available a video presentation ofthe items within the inaccessible room. The video can be viewed in a nearby accessible room in the museum.
II-6.6000 Curb ramps. When streets, roads, or highways are newly built or altered, they must have ramps or sloped areas wherever there are curbs or other barriers to entry from a sidewalk or path. Likewise, when new sidewalks or pathsare built or are altered, they must contain curb ramps or sloped areas wherever they intersect with streets, roads, or highways.
Regulatory references: 28 CFR 35.160-35.164.
II-7.1000 Equally effective communication. A public entity must ensure that its communications with individuals with disabilities are as effective as communications with others. This obligation, however, does not require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of its services, programs, or activities, or in unduefinancial and administrative burdens.
In order to provide equal access, a public accommodation is required to make available appropriate auxiliary aids and services where necessary to ensure effective communication.
What are auxiliary aids and services? Auxiliary aids and services include a wide range of services and devices that promote effective communication.
Examples of auxiliary aids and services for individuals who are deaf or hard of hearing include qualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers,assistive listening systems, telephones compatible with hearing aids, closedcaption decoders, open and closed captioning, telecommunications devices fordeaf persons (TDD's), videotext displays, and exchange of written notes.
Examples for individuals with vision impairments include qualified readers, taped texts, audio recordings, Brailled materials, large print materials, and assistance in locating items.
Examples for individuals with speech impairments include TDD's, computer terminals, speech synthesizers, and communication boards.
The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length and complexity of the communication involved.
ILLUSTRATION 1: Some individuals who have difficulty communicating because of a speech impairment can be understood if individuals dealing with them merely listen carefully and take the extra time that is necessary.
ILLUSTRATION2: For individuals with vision impairments, employees can provide oral directions or read written instructions. In many simple transactions,such as paying bills or filing applications, communications provided through such simple methods will be as effective as the communications provided to other individuals in similar transactions. Many transactions with public entities, however, involve more complex orextensive communications than can be provided through such simple methods. Sign language or oral interpreters, for example, may be required when the information being communicated in a transaction witha deaf individual is complex, or is exchanged for a lengthy period of time. Factors to be considered in determining whether an interpreter is required include the context in which the communication is taking place, the number of people involved, and the importance of the communication.
ILLUSTRATION 1: A municipal hospital emergency room must be able to communicate with patients about symptoms and patients must be able to understand information provided about their conditions and treatment. In this situation, an interpreter is likely to be necessary for communications with individuals who are deaf.
ILLUSTRATION2: Because of the importance of effective communication in State and local court proceedings, special attention must be given to the communications needs of individuals with disabilities involved in such proceedings. Qualified interpreters will usually be necessary to ensure effective communication with parties, jurors, and witnesses who have hearing impairments and use sign language. For individuals with hearing impairments who do not use sign language, other types of auxiliary aidsor services, such as assistive listening devices or computer-assisted transcription services, which allow virtually instantaneous transcripts of courtroom argument and testimony to appear on displays, may be required.
Must public service announcements or other television programming produced by public entities be captioned?Audio portions of television and videotape programming produced by public entities are subject to the requirement to provide equally effective communication for individuals with hearing impairments. Closed captioning of such programs is sufficient to meet thisrequirement.
Must tax bills from public entities be available in Braille and/or large print? What about other documents? Tax bills and other written communications provided by public entities are subject to the requirement for effective communication. Thus, where a public entity provides information in written form, it must, when requested, make that information available to individuals with vision impairments in a formthat is usable by them. "Large print" versions of written documents maybe produced on a copier with enlargement capacities. Brailled versions of documents produced by computers may be produced with a Braille printer, or audio tapes may be provided for individuals who are unable to read large print or do not use Braille.
II-7.1100 Primary consideration. When an auxiliary aid or service is required, the public entity must provide an opportunity for individuals with disabilities to request the auxiliary aids and services of their choice and must give primary consideration to the choice expressed by the individual. "Primary consideration" means that the public entity must honor the choice,unless it can demonstrate that another equally effective means of communication is available, or that use of the means chosen would result in a fundamental alteration in the service, program, or activity or in undue financial and administrative burdens.
It is important to consult with the individual to determine the most appropriate auxiliary aid or service, because the individual with adisability is most familiar with his or her disability and is in the best position to determine what type of aid or service will be effective. Some individuals who were deaf at birth or who lost their hearing before acquiring language, for example, use sign language as their primary form ofcommunication and may be uncomfortable or not proficient with written English, making use of a notepad an ineffective means of communication.
Individuals who lose their hearing later in life, on the other hand, maynot be familiar with sign language and can communicate effectively through writing. For these individuals, use of a word processor with a videotext display may provide effective communication in transactions that are long or complex, and computer-assisted simultaneous transcription may be necessary incourtroom proceedings. Individuals with less severe hearing impairments are often able to communicate most effectively with voice amplification provided by an assistive listening device.
For individuals with vision impairments, appropriate auxiliary aids include readers, audio recordings, Brailled materials, and large print materials. Brailled materials, however, are ineffective for many individuals with vision impairments who do not read Braille, just as large print materials would be ineffective for individuals with severely impairedvision who rely on Braille or on audio communications. Thus, the requirement for consultation and primary consideration to the individual's expressed choice applies to information provided in visual formats as well as to aurally communicated information.
II-7.1200 Qualified interpreter.There are a number of sign language systems in use by individuals whouse sign language. (The most common systems of sign language areAmerican Sign Language and signed English.) Individuals who use aparticular system may not communicate effectively through aninterpreter who uses a different system. When an interpreter isrequired, therefore, the public entity should provide a qualifiedinterpreter, that is, an interpreter who is able to sign to theindividual who is deaf what is being said by the hearing person and whocan voice to the hearing person what is being signed by the individualwho is deaf. This communication must be conveyed effectively,accurately, and impartially, through the use of any necessaryspecialized vocabulary.
May friends or relatives be asked to interpret? Often,friends or relatives of the individual can provide interpretingservices, but the public entity may not require the individual toprovide his or her own interpreter, because it is the responsibility ofthe public entity to provide a qualified interpreter. Also, in manysituations, requiring a friend or family member to interpret may not beappropriate, because his or her presence at the transaction may violatethe individual's right to confidentiality, or because the friend orfamily member may have an interest in the transaction that is differentfrom that of the individual involved. The obligation to provide"impartial" interpreting services requires that, upon request, thepublic entity provide an interpreter who does not have a personalrelationship to the individual with a disability.
Are certified interpreters considered to be more qualified than interpreters without certification?Certification is not required in order for an interpreter to beconsidered to have the skills necessary to facilitate communication.Regardless of the professionalism or skills that a certifiedinterpreter may possess, that particular individual may not feelcomfortable or possess the proper vocabulary necessary for interpretingfor a computer class, for example. Another equally skilled, butnoncertified interpreter might have the necessary vocabulary, thusmaking the noncertified person the qualified interpreter for thatparticular situation.
Can a public entity use a staff member who signs "prettywell" as an interpreter for meetings with individuals who use signlanguage to communicate? Signing and interpreting are not the samething. Being able to sign does not mean that a person can processspoken communication into the proper signs, nor does it mean that he orshe possesses the proper skills to observe someone signing and changetheir signed or fingerspelled communication into spoken words. Theinterpreter must be able to interpret both receptively andexpressively.
II-7.2000 Telephone communications.Public entities that communicate by telephone must provide equallyeffective communication to individuals with disabilities, includinghearing and speech impairments. If telephone relay services, such asthose required by title IV of the ADA, are available, these servicesgenerally may be used to meet this requirement. Relay services involvea relay operator who uses both a standard telephone and a TDD to typethe voice messages to the TDD user and read the TDD messages to thestandard telephone user. Where such services are available, publicemployees must be instructed to accept and handle relayed calls in thenormal course of business.
II-7.3100 General. Many publicentities provide telephone emergency services by which individuals canseek immediate assistance from police, fire, ambulance, and otheremergency services. These telephone emergency services--including "911"services--are clearly an important public service whose reliability canbe a matter of life or death. Public entities must ensure that theseservices, including 911 services, are accessible to persons withimpaired hearing and speech. State and local agencies that provideemergency telephone services must provide "direct access" toindividuals who rely on a TDD or computer modem for telephonecommunication. Telephone access through a third party or through arelay service does not satisfy the requirement for direct access.(However, if an individual places a call to the emergency servicethrough a relay service, the emergency service should accept the callrather than require the caller to hang up and call the emergencyservice directly without using the relay.) A public entity may,however, operate its own relay service within its emergency system,provided that the services for nonvoice calls are as effective as thoseprovided for voice calls.
What emergency telephone services are covered by title II?The term "telephone emergency services" applies to basic emergencyservices -- police, fire, and ambulance -- that are provided by publicentities, including 911 (or, in some cases, seven-digit) systems.Direct access must be provided to all services included in the system,including services such as emergency poison control information.Emergency services that are not provided by public entities are notsubject to the requirement for "direct access."
What is "direct access? "Direct access" means thatemergency telephone services can directly receive calls from TDD's andcomputer modem users without relying on outside relay services or thirdparty services.
Does title II require that telephone emergency service systems be compatible with all formats used for nonvoice communications?No. At present, telephone emergency services must only be compatiblewith the Baudot format. Until it can be technically proven thatcommunications in another format can operate in a reliable andcompatible manner in a given telephone emergency environment, a publicentity would not be required to provide direct access to computermodems using formats other than Baudot.
Are any additional dialing or space bar requirements permissible for 911 systems?No. Additional dialing or space bar requirements are not permitted.Operators should be trained to recognize incoming TDD signals andrespond appropriately. In addition, they also must be trained torecognize that "silent" calls may be TDD or computer modem calls and torespond appropriately to such calls as well.
A caller, however, is not prohibited from announcing to the answererthat the call is being made on a TDD by pressing the space bar or keys. Acaller may transmit tones if he or she chooses to do so. However, a publicentity may not require such a transmission.
II-7.3200 911 lines. Where a 911telephone line is available, a separate seven-digit telephone line mustnot be substituted as the sole means for nonvoice users to access 911services. A public entity may, however, provide a separate seven-digitline for use exclusively by nonvoice calls in addition to providingdirect access for such calls to the 911 line. Where such a separateline is provided, callers using TDD's or computer modems would have theoption of calling either 911 or the seven-digit number.
II-7.3300 Seven-digit lines.Where a 911 line is not available and the public entity providesemergency services through a seven-digit number, it may provide twoseparate lines -- one for voice calls, and another for nonvoice calls-- rather than providing direct access for nonvoice calls to the lineused for voice calls, provided that the services for nonvoice calls areas effective as those offered for voice calls in terms of time responseand availability in hours. Also, the public entity must ensure that thenonvoice number is publicized as effectively as the voice number, andis displayed as prominently as the voice number wherever the emergencynumbers are listed.
II-7.3400 Voice amplification.Public entities are encouraged, but not required, to provide voiceamplification for the operator's voice. In an emergency, a person whohas a hearing loss may be using a telephone that does not have anamplification device. Installation of speech amplification devices onthe handsets of operators would be one way to respond to this situation.
Regulatory references: 28 CFR 35.105-35.107; 35.150(c) and (d).
II-8.1000 General. Title IIrequires that public entities take several steps designed to achievecompliance. These include the preparation of a self-evaluation. Inaddition, public entities with 50 or more employees are required to --
1) Develop a grievance procedure;
2) Designate an individual to oversee title II compliance;
3) Develop a transition plan if structural changes are necessary for achieving program accessibility; and
4) Retain the self-evaluation for three years.
How does a public entity determine whether it has "50 or more employees"?Determining the number of employees will be based on a governmentwidetotal of employees, rather than by counting the number of employees ofa subunit, department, or division of the local government. Part-timeemployees are included in the determination.
ILLUSTRATION: Town X has 55 employees (including 20 part-timeemployees). Its police department has 10 employees, and its fire departmenthas eight employees. The police and fire department are subject to titleII's administrative requirements applicable to public entities with 50 ormore employees because Town X, as a whole, has 50 or more employees.
Because all States have at least 50 employees, all State departments,agencies, and other divisional units are subject to title II's administrativerequirements applicable to public entities with 50 or more employees.
Does the fact that a public entity has not completed its self-evaluationuntil January 26, 1993, excuse interim compliance? No. A public entity isrequired to comply with the requirements of title II on January 26, 1992,whether or not it has completed its self- evaluation.
Which public entities must retain a copy of the self-evaluation?A public entity that employs 50 or more employees must retain itsself-evaluation for three years. Other public entities are not requiredto retain their self-evaluations but are encouraged to do so becausethese documents evidence a public entity's good faith efforts to complywith title II's requirements.
What if a public entity already did a self-evaluation as partof its obligations under section 504 of the Rehabilitation Act of 1973?The title II self-evaluation requirement applies only to those policiesand practices that previously had not been included in aself-evaluation required by section 504. Because most section 504self-evaluations were done many years ago, however, the Departmentexpects that many public entities will re- examine all their policiesand practices. Programs and functions may have changed significantlysince the section 504 self-evaluation was completed. Actions that weretaken to comply with section 504 may not have been implemented fully ormay no longer be effective. In addition, section 504's coverage hasbeen changed by statutory amendment, particularly the Civil RightsRestoration Act of 1987, which expanded the definition of a covered"program or activity." Therefore, public entities should ensure thatall programs, activities, and services are examined fully, except wherethere is evidence that all policies were previously scrutinized undersection 504.
What should a self-evaluation contain? A self-evaluationis a public entity's assessment of its current policies and practices.The self-evaluation identifies and corrects those policies andpractices that are inconsistent with title II's requirements. As partof the self-evaluation, a public entity should:
1) Identify all of the public entity's programs, activities, andservices; and
2)Review all the policies and practices that govern the administration ofthe public entity's programs, activities, and services.
Normally, a public entity's policies and practices are reflected in itslaws, ordinances, regulations, administrative manuals or guides, policydirectives, and memoranda. Other practices, however, may not be recorded andmay be based on local custom.
Once a public entity has identified its policies and practices, itshould analyze whether these policies and practices adversely affect thefull participation of individuals with disabilities in its programs,activities, and services. In this regard, a public entity should be mindfulthat although its policies and practices may appear harmless, they may resultin denying individuals with disabilities the full participation of itsprograms, activities, or services. Areas that need careful examinationinclude the following:
1) A public entity must examine each program to determine whether anyphysical barriers to access exist. It should identify steps that need to betaken to enable these programs to be made accessible when viewed in theirentirety. If structural changes are necessary, they should be included inthe transitionplan (see II-8.3000).
2)A public entity must review its policies and practices to determinewhether any exclude or limit the participation of individuals withdisabilities in its programs, activities, or services. Such policies orpractices must be modified, unless they are necessary for the operationor provision of the program, service, or activity. The self- evaluationshould identify policy modifications to be implemented and includecomplete justifications for any exclusionary or limiting policies orpractices that will not be modified.
3) A public entity shouldreview its policies to ensure that it communicates with applicants,participants, and members of the public with disabilities in a mannerthat is as effective as its communications with others. If a publicentity communicates with applicants and beneficiaries by telephone, itshould ensure that TDD's or equally effective telecommunication systemsare used to communicate with individuals with impaired hearing orspeech. Finally, if a public entity provides telephone emergencyservices, it should review its policies to ensure direct access toindividuals who use TDD's and computer modems.
4) A publicentity should review its policies to ensure that they includeprovisions for readers for individuals with visual impairments;interpreters or other alternative communication measures, asappropriate, for individuals with hearing impairments; and amanuensesfor individuals with manual impairments. A method for securing theseservices should be developed, including guidance on when and wherethese services will be provided. Where equipment is used as part of apublic entity's program, activity, or service, an assessment should bemade to ensure that the equipment is usable by individuals withdisabilities, particularly individuals with hearing, visual, and manualimpairments. In addition, a public entity should have policies thatensure that its equipment is maintained in operable working order.
5)A review should be made of the procedures to evacuate individuals withdisabilities during an emergency. This may require the installation ofvisual and audible warning signals and special procedures for assistingindividuals with disabilities from a facility during an emergency.
6)A review should be conducted of a public entity's written andaudio-visual materials to ensure that individuals with disabilities arenot portrayed in an offensive or demeaning manner.
7) If apublic entity operates historic preservation programs, it should reviewits policies to ensure that it gives priority to methods that providephysical access to individuals with disabilities.
8) A publicentity should review its policies to ensure that its decisionsconcerning a fundamental alteration in the nature of a program,activity, or service, or a decision that an undue financial andadministrative burden will be imposed by title II, are made properlyand expeditiously.
9) A public entity should review itspolicies and procedures to ensure that individuals with mobilityimpairments are provided access to public meetings.
10) Apublic entity should review its employment practices to ensure thatthey comply with other applicable nondiscrimination requirements,including section 504 of the Rehabilitation Act and the ADA regulationissued by the Equal Employment Opportunity Commission.
11) Apublic entity should review its building and construction policies toensure that the construction of each new facility or part of afacility, or the alteration of existing facilities after January 26,1992, conforms to the standards designated under the title IIregulation.
12) A review should be made to ascertain whethermeasures have been taken to ensure that employees of a public entityare familiar with the policies and practices for the full participationof individuals with disabilities. If appropriate, training should beprovided to employees.
13) If a public entity limits or deniesparticipation in its programs, activities, or services based on drugusage, it should make sure that such policies do not discriminateagainst former drug users, as opposed to individuals who are currentlyengaged in illegal use of drugs.
If a public entity identifies policies and practices thatdeny or limit the participation of individuals with disabilities in itsprograms, activities, and services, when should it make changes?Once a public entity has identified policies and practices that deny orlimit the participation of individuals with disabilities in itsprograms, activities, and services, it should take immediate remedialaction to eliminate the impediments to full and equivalentparticipation. Structural modifications that are required for programaccessibility should be made as expeditiously as possible but no laterthan January 26, 1995.
Is there a requirement for public hearings on a public entity's self-evaluation?No, but public entities are required to accept comments from the publicon the self-evaluation and are strongly encouraged to consult withindividuals with disabilities and organizations that represent them toassist in the self-evaluation process. Many individuals withdisabilities have unique perspectives on a public entity's programs,activities, and services. For example, individuals with mobilityimpairments can readily identify barriers preventing their fullenjoyment of the public entity's programs, activities, and services.Similarly, individuals with hearing impairments can identify thecommunication barriers that hamper participation in a public entity'sprograms, activities, and services.
II-8.3000 Transition plan. Where structural modifications are required to achieve program accessibility, a public entity with 50 or more employees must do a transition plan by July 26, 1992, that provides for the removal of these barriers. Any structural modifications must be completed as expeditiously as possible, but, in any event, by January 26, 1995.
What if a public entity has already done a transition plan under section 504 of the Rehabilitation Act of 1973? If a public entity previously completed a section 504 transition plan, then, at a minimum, a title II transition plan must cover those barriers to accessibility that were not addressed by its prior transition plan. Although not required, it may be simpler to include all of a public entity's operations in its transition plan rather than identifying and excluding those barriers that were addressed in its previous plan.
Must the transition plan be made available to the public? If a public entity has 50 or more employees, a copy of the transition plan must be made available for public inspection.
What are the elements of an acceptable transition plan? A transition plan should contain at a minimum --
1) A list of the physical barriers in a public entity's facilities that limit the accessibility of its programs, activities, or services to individuals with disabilities;
2) A detailed outline of the methods to be utilized to remove these barriers and make the facilities accessible;
3) The schedule for taking the necessary steps to achieve compliance with title II. If the time period for achieving compliance is longer than one year, the plan should identify the interim steps that will be taken during each year of the transition period; and,
4) The name of the official responsible for the plan's implementation.
II-8.4000 Notice to the public. A public entity must provide information on title II's requirements to applicants, participants, beneficiaries, and other interested persons. The notice shall explain title II's applicability to the public entity's services, programs, or activities. A public entity shall provide such information as the head of the public entity determines to be necessary to apprise individuals of title II's prohibitions against discrimination.
What methods can be used to provide this information? Methods include the publication of information in handbooks, manuals, and pamphlets that are distributed to the public to describe a public entity's programs and activities; the display of informative posters in service centers and other public places; or the broadcast of information by television or radio. In providing the notice, a public entity must comply with the title II requirements for effective communication, including alternate formats, as appropriate.
II-8.5000 Designation of responsible employee and development of grievance procedures. A public entity that employs 50 or more persons shall designate at least one employee to coordinate its efforts to comply with and fulfill its responsibilities under title II, including the investigation of complaints. A public entity shall make available the name, office address, and telephone number of any designated employee.
In addition, the public entity must adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by title II.
Regulatory references: 28 CFR 35.170-35.190.
1) An administrative complaint with an appropriate Federal agency; or
2) A lawsuit in Federal district court.
If an individual files an administrative complaint, an appropriate Federal agency will investigate the allegations of discrimination. Should the agency conclude that the public entity violated title II, it will attempt to negotiate a settlement with the public entity to remedy the violations. If settlement efforts fail, the matter will be referred to the Department of Justice for a decision whether to institute litigation.
How does title II relate to section 504? Many public entities are subject to section 504 of the Rehabilitation Act as well as title II. Section 504 covers those public entities operating programs or activities that receive Federal financial assistance. Title II does not displace any existing section 504 jurisdiction.
The substantive standards adopted for title II are generally the same as those required under section 504 for federally assisted programs. In those situations where title II provides greater protection of the rights of individuals with disabilities, however, the funding agencies will also apply the substantive requirements established under title II in processing complaints covered by both title II and section 504.
Individuals may continue to file discrimination complaints against recipients of Federal financial assistance with the agencies that provide that assistance, and the funding agencies will continue to process those complaints under their existing procedures for enforcing section 504. The funding agencies will be enforcing both title II and section 504, however, for recipients that are also public entities.
What must be included in a complaint? First, a complaint must be in writing. Second, it should contain the name and address of the individual or the representative filing the complaint. Third, the complaint should describe the public entity's alleged discriminatory action in sufficient detail to inform the Federal agency of the nature and date of the alleged violation. Fourth, the complaint must be signed by the complainant or by someone authorized to do so on his or her behalf. Finally, complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discrimination.
Is there a time period in which a complaint must be filed? Yes. A complaint must be filed within 180 days of the date of the alleged act(s) of discrimination, unless the time for filing is extended by the Federal agency for good cause. As long as the complaint is filed with any Federal agency, the 180-day requirement will be considered satisfied.
Where should a complaint be filed? A complaint may be filed with either --
1) Any Federal agency that provides funding to the public entity that is the subject of the complaint;
2) A Federal agency designated in the title II regulation to investigate title II complaints; or
3) The Department of Justice.
Complainants may file with a Federal funding agency that has section 504 jurisdiction, if known. If no Federal funding agency is known, then complainants should file with the appropriate designated agency. In any event, complaints may always be filed with the Department of Justice, which will refer the complaint to the appropriate agency. The Department's regulation designates eight Federal agencies to investigate title II complaints primarily in those cases where there is no Federal agency with section 504 jurisdiction.
How will employment complaints be handled? Individuals who believe that they have been discriminated against in employment by a State or local government in violation of title II may file a complaint --
1) With a Federal agency that provides financial assistance, if any, to the State or local program in which the alleged discrimination took place; or
2) With the EEOC, if the State or local government is also subject to title I of the ADA (see II-4.0000); or
3) With the Federal agency designated in the title II regulation to investigate complaints in the type of program in which the alleged discrimination took place.
As is the case with complaints related to nonemployment issues, employment complaints may be filed with the Department of Justice, which will refer the complaint to the appropriate agency.
Which are the designated Federal agencies and what are their areas of responsibility? The eight designated Federal agencies, the functional areas covered by these agencies, and the addresses for filing a complaint are the --
1) Department of Agriculture: All programs, services, and regulatory activities relating to farming and the raising of livestock, including extension services. Complaints should be sent to: Complaints Adjudication Division, Office of Advocacy and Enterprise, Room 1353 - South Building, Department of Agriculture, 14th & Independence Avenue, S.W., Washington, D.C. 20250.
2) Department of Education: All programs, services, and regulatory activities relating to the operation of elementary and secondary education systems and institutions, institutions of higher education and vocational education (other than schools of medicine, dentistry, nursing, and other health-related schools), and libraries. Complaints should be sent to: Office for Civil Rights, Department of Education, 330 C Street, S.W., Suite 5000, Washington, D.C. 20202.
3) Department of Health and Human Services: All programs, services, and regulatory activities relating to the provision of health care and social services, including schools of medicine, dentistry, nursing, and other health-related schools, the operation of health care and social service providers and institutions, including "grass-roots" and community services organizations and programs, and preschool and day care programs. Complaints should be sent to: Office for Civil Rights, Department of Health & Human Services, 330 Independence Avenue, S.W., Washington, D.C. 20201.
4) Department of Housing and Urban Development: All programs, services, and regulatory activities relating to State and local public housing, and housing assistance and referral. Complaints should be sent to: Assistant Secretary for Fair Housing and Equal Opportunity, Department of Housing and Urban Development, 451 7th Street, S.W., Room 5100, Washington, D.C. 20410.
5) Department of the Interior: All programs, services, and regulatory activities relating to lands and natural resources, including parks and recreation, water and waste management, environmental protection, energy, historic and cultural preservation, and museums. Complaints should be sent to: Office for Equal Opportunity, Office of the Secretary, Department of the Interior, 18th & C Streets, N.W., Washington, D.C. 20547.
6) Department of Justice: All programs, services, and regulatory activities relating to law enforcement, public safety, and the administration of justice, including courts and correctional institutions; commerce and industry, including general economic development, banking and finance, consumer protection, insurance, and small business; planning, development, and regulation (unless assigned to other designated agencies); State and local government support services (e.g., audit, personnel, comptroller, administrative services); all other government functions not assigned to other designated agencies. Complaints should be sent to: Coordination and Review Section, P.O. Box 66118, Civil Rights Division, U.S. Department of Justice, Washington, D.C. 20035-6118.
7) Department of Labor: All programs, services, and regulatory activities relating to labor and the work force. Complaints should be sent to: Directorate of Civil Rights, Department of Labor, 200 Constitution Avenue, N.W., Room N-4123, Washington, D.C. 20210.
8) Department of Transportation: All programs, services, and regulatory activities relating to transportation, including highways, public transportation, traffic management (non-law enforcement), automobile licensing and inspection, and driver licensing. Complaints should be sent to: Office for Civil Rights, Office of the Secretary, Department of Transportation, 400 Seventh Street, S.W., Room 10215, Washington, D.C. 20590.
Where should a complaint be filed if more than one designated agency has responsibility for a complaint because it concerns more than one department or agency of a public entity? Complaints involving more than one area should be filed with the Department of Justice. If two or more agencies have apparent responsibility for a complaint, the Assistant Attorney General for Civil Rights of the Department of Justice shall determine which one of the agencies shall be the designated agency for purposes of that complaint. Complaints involving more than one area of a public entity should be sent to: Coordination and Review Section, Civil Rights Division, U.S. Department of Justice, P.O. Box 66118, Washington, D.C. 20035-6118.
How will complaints be resolved? The Federal agency processing the complaint will resolve the complaint through informal means or issue a detailed letter containing findings of fact and conclusions of law and, where appropriate, a description of the actions necessary to remedy each violation. Where voluntary compliance cannot be achieved, the complaint may be referred to the Department of Justice for enforcement. In cases where there is Federal funding, fund termination is also an enforcement option.
If a public entity has a grievance procedure, must an individual use that procedure before filing a complaint with a Federal agency or a court? No. Exhaustion of a public entity's grievance procedure is not a prerequisite to filing a complaint with either a Federal agency or a court.
Must the complainant file a complaint with a Federal agency prior to filing an action in court? No. The ADA does not require complainants to exhaust administrative remedies prior to instituting litigation.
Are attorney's fees available? Yes. The prevailing party (other than the United States) in any action or administrative proceeding under the Act may recover attorney's fees in addition to any other relief granted. The "prevailing party" is the party that is successful and may be either the complainant (plaintiff) or the covered entity against which the action is brought (defendant). The defendant, however, may not recover attorney's fees unless the court finds that the plaintiff's action was frivolous, unreasonable, or without foundation, although it does not have to find that the action was brought in subjective bad faith. Attorney's fees include litigation expenses, such as expert witness fees, travel expenses, and costs. The United States is liable for attorney's fees in the same manner as any other party, but is not entitled to them when it is the prevailing party.
Is a State immune from suit under the ADA? No. A State is not immune from an action in Federal court for violations of the ADA.