Guest Author - Monica J. Foster
Under Title II of the ADA, citizens with disabilities must have an equal opportunity to participate in or benefit from municipal, county or state programs, services, and activities. For example, someone who is deaf or hard of hearing wonít experience equal opportunity to benefit from attending a public meeting unless he or she has access to what is said through an interpreter or by the provision of assistive listening device or real-time captioning. Or, a wheelchair user wonít have an equal opportunity to participate in a program if applications are filed on the second floor of a building without an elevator. For someone with a visual impairment, printed information alone is not equally effective if the individual canít read regular written material.
Cities and counties must reasonably modify policies, practices, or procedures to ensure access and equal opportunity to citizens with disabilities. Letís say a government provides emergency food, shelter, and cash grants to individuals who are eligible people with disabilities. The application process, however, is very lengthy and complex. When many individuals with intellectual and mental disabilities apply for benefits, they canít complete the application process successfully. As a result, they are effectively denied benefits to which they are otherwise entitled. In this instance, the government agency is obligated to make reasonable modifications to the application process so otherwise eligible individuals arenít unintentionally denied needed benefits and services. Modifications to the program might include simplifying the process or providing applicants with intellectual and mental disabilities individualized assistance to complete forms. Another example might include allowing a person with a mobility limitation to sit down while "waiting in line," or simply being more patient with a person who takes longer to express himself or be understood, because of a disability.
Local and state entities must ensure that its communications with citizens with disabilities are as effective as its communications with other citizens. They must provide appropriate auxiliary aids and services as needed to ensure effective communication. First choice must be given to the citizen in their choice of the aid needed. Whatever accommodation is requested, the government agency or entity must make the best effort possible to provide it unless it is determined it is either a fundamental alteration in the program, or an undue financial or administrative burden. Examples of auxiliary aids and services include such things as qualified interpreters, note takers, real-time captioning, written materials, assistive listening systems, open or closed captioning, TTYs, and exchange of written notes (if the communication is not complex) for people who are deaf or hard of hearing. For citizens who are blind or who experience low vision, the accommodation may include requesting qualified readers; information on audiotape, Braille, or large print materials, audio-descriptions of Powerpoint or video presentations; and assistance in locating items. For those with speech difficulties the aids requested may include TTYs, computer terminals where the citizen and service provider take turns typing back and forth Ė that is, if the communication is not overly complex.
Another accommodation might be an integrated setting, or ďmainstreamingĒ. No one can be excluded from regular programs or required to accept accommodation. The County or City may offer separate or specialized programs when it is absolutely necessary to provide citizens with disabilities an equal opportunity to benefit from programs. Letís say the City recreation department sponsors a separate basketball team as an option for wheelchair users. A museum might offer a tour for people with visual impairments so they can touch and handle specific objects on a limited basis; however, that person with a visual impairment canít be excluded from the standard tour if that person prefers the typical tour.
A municipalityís eligibility criteria for participating in its programs, services, or activities must not screen out or tend to screen out citizens with disabilities, except in rare instances when such requirements are necessary. A program canít request medical information unless it can demonstrate that each piece of information requested is needed to ensure safe participation in the program. A city or county program may impose legitimate safety requirements necessary for the safe operation of its services, programs, and activities. Safety requirements must be based on real risks, not on speculation, stereotypes, or generalizations about citizens with disabilities.
As for charging extra, although providing accommodations may result in some additional cost, a town may not place a surcharge on, or charge extra, particular individuals with disabilities to cover their expenses. For instance, there can be no extra program charge to a person who is deaf for interpreter services, or to groups of citizens with disabilities, but fees may be increased across the board for all participants to cover the cost of those accommodations. There can be no singling out specific citizens with disabilities.
A city or county entity doesnít have to provide citizens with disabilities with personal or individually prescribed devices (wheelchairs, hearing aids or communication devices) or provide personal attendant services (such as assistance in eating, toileting or dressing), unless providing these personal, (often medical in nature) services are services offered for everyone.
Title II entities must also ensure equipment and accessibility features of buildings, such as a hydraulic lift into the city swimming pool, an elevator or a lift into the courthouse, are in good working order and accessible to individuals with disabilities. Isolated or temporary interruptions in access due to maintenance and repair of accessible features are acceptable.
State and local entities must guarantee all programs, activities, and services are accessible to citizens with disabilities. One key is facilities access. In terms of new construction, any facility or part of a facility constructed by a state or local government entity after January 26, 1992 must be built in strict compliance with accessibility codes and regulations, so that itís readily accessible to and usable by citizens with disabilities.
As alterations made after January 26, 1992 affect the usability of a site, the altered portion (as well as paths of travel, toilets, drinking fountains, and public phones) must be made accessible to citizens with disabilities. Remodeling or updates to centrally used areas also trigger a requirement to make the path of travel, restrooms, fountains, and phones serving the area accessible, too.
For sites prior to January 26, 1992, a municipality isnít necessarily required to make every pre-ADA facility fully-compliant with the latest accessibility codes. However, all town services, programs, or activities must be accessible and usable for citizens with disabilities on the whole. This is called ďoverall program access.Ē As an example, not all swimming facilities before the ADA must be completely accessible, but there must be an alternate swimming facility nearby that is accessible.
Program accessibility can be achieved several ways. Structural options include altering existing facilities or constructing new ones. Nonstructural options include acquiring new or redesigning current equipment, assigning assistants at an arena to assist individuals with disabilities, or providing services at another site that is more accessible. Take note that a local, county or state entity must give priority to an option resulting in the most integrated setting to encourage interaction among citizens of all ability statuses. This isnít about Ďseparate but equalí; this is about an equal experience in the most integrated way possible.
Under Title II of the ADA, all public entities must designate a person or team of people whose job it is to mediate complaints and to ensure compliance with the ADA and other disability rights laws. Does your municipality, county or state have an ADA coordinator or person in charge of accessibility that you can readily contact? Who is it? It isnít unusual for a human resources person on the state or local entityís staff to be that initial contact. Get to know them before you need something. Itís best to meet these individuals before any issues arise and misunderstandings make for uncomfortable interaction.
Also, state and local agencies are required to do an ADA self-evaluation of their programs, services, activities, and facilities and to develop an ADA Compliance Plan identifying physical, programmatic, and communication changes needed to comply with the ADA. This plan should draft a timeline for meeting accessibility goals necessary to remove barriers to access, such as when a building will be remodeled with accessible restrooms, doors widened, assistive listening devices installed or parking made accessible and compliant per the law. That way, everyone on the work team for these responsibilities knows when what is supposed to happen and who is responsible, as well as where the funding will come from to make these changes. Knowing when, where and how changes will be made makes for better understanding and communication between citizens with disabilities, as well as state and local representatives.