ADA - Americans With Disabilities Act
A Summary of Titles I, II and III

TITLE II

Title II closely follows section 504 of the Rehabilitation Act of 1973 which protects qualified individuals with disabilities from discrimination from federally assisted services, programs, and activities. ADA merely extends this protection to all state and local government services, programs, and activities regardless of whether the agency receives federal assistance.

Title II says that "no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity." These services, programs, and activities are the same ones available to the rest of the American public.

Public entities (government) must make every effort to integrate the disabled into their existing and future services, programs, and activities.

Public entities must be able to communicate "with all of the public (telephone contacts, office walk-ins, or interviews), provide for the public's use of the facilities, and allow access to programs that provide State or local government services or benefits."

In order to carry this out ADA says that all public entities shall by January 26th, 1993 "evaluate its current services, policies, and practices, and the effects thereof, that do not or may not meet the requirements of ADA and, to the extent modification of any such services, policies, and practices is required the public entity shall proceed to make the necessary modifications."

The public entity must confer with interested persons, and if they employ 50 or more persons they "must maintain on file, a list of interested persons consulted; a description of the areas examined and any problems identified; and a description of any modifications made." Again if the public entity has 50 or more employees "they must designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities, including any investigation of any complaint."

On January 26, 1993 all governments must have completed a self-evaluation and those with 50 or more employees must also keep records on their compliance and have a designated coordinator. This evaluation should cover the entity's ability to communicate with the disabled and provide the disabled with access to its facilities and services.

To ensure effective communication a public entity must not deny an individual access to programs, services, or activities due to the lack of auxiliary aids.

Auxiliary aids and services include a wide range of services and devices for ensuring effective communication. They include but are not limited to telephone handset amplifiers, telecommunication devices for deaf persons (TDD's), videotext displays, brailled materials, and audio and visual life safety warning systems. If a public entity is unable to provide any of the devices mentioned they must still attempt to communicate through other means. These would include notetakers, transcription services, qualified readers, large print materials or anything else that ensures effective communication with the disabled.

ADA does not require a public entity to provide to individuals with disabilities personal devices, such as wheelchairs, eyeglasses, hearing aids, or assistance in eating or dressing.

Besides providing auxiliary aids a public entity "shall operate each service, program, or activity in such a way that it is readily accessible to and usable by individuals with disabilities."

"This does not necessarily require a public entity to make each of its facilities accessible to and usable by individuals with disabilities; nor does it require a public entity to take any action that would threaten or destroy the historic significance of an historic property; or require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity; or in undue financial and administrative burdens."

If the public entity believes that compliance with ADA would significantly alter the program, service, or activity or that it would result in an undue financial burden, the public entity has the burden of proof. The head of the entity makes this decision. In making this decision all of the resources available for use in this service, program, or activity must be considered. "If an action would result in such an alteration or such burdens, a public entity shall take any other action that would ensure that individuals with disabilities receive the benefits or services."

In other words, a public entity must do everything it can, within reason, to make its programs, services, and activities accessible to the disabled in an integrated setting.

Public entities are not required to make their buildings accessible as long as they can provide their programs, services, and activities, in an integrated setting. Moving programs to accessible buildings is one answer. It is clear, however, that many public buildings are not accessible, and due to the large number of services, programs, and activities offered many exiting buildings will have to be modified to provide access to the disabled. It is impossible to make all government programs, services, and activities accessible without removing a lot of barriers in existing government buildings.

"Where structural changes in facilities are undertaken to comply with the obligations established under the ADA such changes shall be made within three years of January 26, 1992. In the event that structural changes to facilities will be undertaken to achieve program accessibility, a public entity that employs 50 or more persons shall develop, within six months of January 26,1992 a transition plan setting forth the steps necessary to complete such changes.

The plan shall, at a minimum, identify physical obstacles in the public entity's facilities that limit the accessibility of its programs or activities to individuals with disabilities; describe in detail the methods that will be used to make facilities accessible; specify the schedule for taking steps necessary to achieve compliance; and indicate the official responsible for implementing the plan."

To summarize, public entities need to make their programs, services, and activities accessible to the disabled in an integrated setting whenever possible. They are not required to make their buildings accessible unless it is necessary to achieve the directive of ADA. When alterations to existing buildings is necessary they have three years to carry out the work and must follow the ADA guidelines. Since the ADA guidelines are essentially the same for both the private and public sector we will discuss them at the end. Likewise, all new construction and major alterations in public buildings is the same for the private sector, so we will cover that next in Title III.

One last point on Title II is the area of responsibility and grievance procedures. Whereas, in Title I the EEOC had ultimate responsibility, the Department of Justice coordinates compliance of Title II and Title III.

Under Title II any individual may file a grievance within 180 days with any agency that he or she believes to be the appropriate agency designated by ADA or any agency that provides funding to the entity, or to the Justice Department.

Back in 1973 under section 504 of the Rehabilitation Act certain federal agencies were designated has having responsibility over many government activities. For instance the Department of Education has responsibility over public schools, the Department of Health over public hospitals and public schools of medicine, and the Department of Housing and Urban Development over public housing, etc. They have responsibility over grievances filed against these entities. This does not mean that local agencies are not responsible. They are; and grievances can, and probably will, be filed against them. If voluntary compliance is not carried out by the designated, responsible agency the individual may file a private suit.