You're listening to the Disability Law Lowdown, Show Number 6
Beth Case: Hello, and welcome to the Disability Law Lowdown podcast. No, I'm not Jacquie Brennan. I'm your guest host, Beth Case, from the Disability411 podcast. Here on the Disability Law Lowdown podcast, we're going to listen to Jana Copeland interview Pat Going about Title II of the Americans with Disabilities Act. Both Jana and PAt work for the Rocky Mountain ADA Center. So let's hear what they have to say.
Jana Copeland: Hi this is Jana Copeland, Deputy Director of the Rocky Mountain ADA Center
out of Colorado Springs and I'm here today to chat a little bit with
our director here at the project, Pat Going, about Title II basics
or a little bit about responsibilities dealing with state and local
governments. How are you doing today, Pat?
Pat Going: Well I'm doing well! Good morning.
Jana Copeland: As a way to kick off: What exactly is Title II?
Pat Going: Well Title II of the Americans with Disabilities Act for those that
aren't real familiar with it relates to those entities that receive
tax dollars. These typically are the state and local government, public
schools, some municipalities like water districts, things of that nature.
Title II, as opposed to private entities which fall under Title III.
So anybody that gets tax-supported funds is Title II.
Jana Copeland: And what exactly are the requirements under Title II of the ADA, Pat?
Pat Going: Well Title II, because government -- local government and state
government -- is involved, has a bit a bit more formality, Jana, that
really requires designation of an ADA Coordinator -- more paperwork would
be another way to look at it -- and it is something that all Title II
entities should take quite seriously in having that structure in place
with an appointed coordinator and then really complying with the ADA.
Jana Copeland: And I've heard a little bit about a project "Civic Access" that deals
with state and local governments. Can you tell me a little bit about that
initiative?
Pat Going: This is something that the US Department of Justice has initiated.
It's been in progress for, oh, I guess three years now, and this is one
of the proactive enforcement actions that Department of Justice has taken
where they go out and visit counties or cities, I like to think of it
almost like a tax audit, that they would arrive at city hall and ask to
see the ADA coordinator and also the self-evaluation and transition plan.
It is something that local governments need to be prepared for and if
they're not organized, it can create really quite a bit of catch-up
for them to comply with the Department of Justice. On the Department
of Justice's web site, Jana, there's a real good explanation of Project
Civic Access and the DOJ site is linked from
ada.gov.
So I would encourage any of our listeners to take a look at that and
get more familiar with who has been involved in some of the settlement
agreements.
Jana Copeland: So, when folks from Department of Justice show up and come and
do a Project Civic Access visit, Pat, what exactly are they looking for?
Pat Going: Well, they are obviously looking for compliance as specified in the
Americans With Disabilities Act and I have mentioned the formality of
really having a person who is responsible in place, a grievance
procedure that has been published, an action plan where they have identified
where barriers are and they've done this self-evaluation plan which is
looking at the programs that these state and local governments offer
to insure that everybody who is eligible has access to those programs,
including people with disabilities and they would also look at any --
almost like a punch-list from construction -- if remedies are needed
in the physical built environment, that there is some sort of program
to get those things fixed. Often what happens, Jana, is there's a
settlement agreement that really lays out timelines so all of these
things are remedied.
Jana Copeland: Okay, well, you raised an issue about the built environment, Pat.
Does Title II of the Americans With Disabilities Act require that
state and local governments retrofit all of their existing buildings
or how exactly do the architectural requirements work for Title II
entities?
Pat Going: It is a little bit unique and boy, good question! Thank you.
First of all, the easy part of the answer is: all new construction
needs to be built to meet the standards for accessible design,
also known as ADAAG. Where it becomes a little trickier is
for existing facilties. The ADA says it is not necessarily required
that every existing building be retrofitted but on the contrary, the
state and local government needs to insure every program is accessible.
So, let's take public schools, which we discussed are
covered under the Title II. In a metropolitan area, not
every grade school might need to be accessible but at least several
would be so that if there was a student who did have a disability and a
particular grade school was not accessible, there would be a nearby one
that they could attend. So its this "program accessibility" requirement
as it relates to existing facilities. If indeed it is determined that
the only way to make a program accessible is to retrofit the physical
facility, then that Title II entity does need to do that.
Jana Copeland: So, you actually mentioned public schools a couple of times now, Pat.
I have a quick question for you: How exactly does Title II of the ADA
interact with the Rehabilitation Act of 1973, in Section 504?
Pat Going: Well, public schools need to be aware of both. As we know, the
Rehab Act actually was passed in 1973 and requires any entity that is the
recipient of federal funds to make sure that their programs are accessible
to everybody, including people with disabilities, so that has generated
since 1973. In many ways, the ADA overlays and reinforces the Rehab Act
and requires the programs to be accessible. Most public schools through
a variety of programs do receive federal funds. We like to point towards
the Title II requirements just because it is more explicit and there is
more definitive guidance.
Jana Copeland: That makes sense. If, for some reason, a Title II entity is
required to provide services or interpreter or some other form of
effective communication, Pat, are they allowed to pass those costs
associated with those on to the individual with a disability?
Pat Going: The short answer is no, and we like to identify that particular
situation as a surcharge. A person with a disability may not be
required to pick up the cost to provide an auxiliary aid or some sort
of modification in the program that the Title II entity is required
to provide. So, a real very clear point is
that surcharges
may not be passed back onto the person with a disability.
Jana Copeland: Okay, another term that gets thrown around a little bit -- I know
it is sometimes confused with "accommodations" under the
employment provisions of the ADA -- are "reasonable modifications".
Can you take a minute to explain that concept to us?
Pat Going: All parts of the ADA, when we really get into the details, will have a
ceiling -- either an undue hardship under the employment side of things
or an undue burden as it relates to providing program access to all.
So, when we look at what is required to provide that program, you see
this term "reasonable modification of policy" and what that is saying
is that Title II entity will need to make a good faith effort and do
as much as it can but if it goes beyond a "reasonable modification",
meaning literally too expensive -- they just literally do not have the
financial resources -- or there is a fundamental alteration of what
that program is, an administrative upheaval -- then it is no longer a
reasonable modification. So that term is really saying the ADA, like
all parts, is "this needs to work for everyone."
Jana Copeland: On that note, I know that here in our region and I know across the
country, a lot of our communities deal with accessibility related to
historic buildings, particularly in older communities that have buildings
that might not be seen as completely accessible or compliant with the
ADA, Pat. How exactly can Title II entities weigh or balance out historic
preservation and access for folks in the community who have disabilities?
Pat Going: This is another situation that the ADA co-exists with other laws and
other guidance that really is required of our state and local governments
and historic buildings, there's some good resources on that, Jana, that
goes into a little more detail but in essence it says that we need to
respect our heritage, we need to respect those unique features in our
historic buildings so that we don't destroy these things in the process
of making something program accessible. However, if indeed an historic
building is doing an alteration or adding a brand new restroom inside,
those instances where they have the opportunity to meet the new building
standards, then they should.
So I mentioned a good faith effort and common sense earlier, so with an
historic building, if indeed there are too many stairs to the front door
and there's no way to change that out, then you would hope that other
entrances would be looked at or possibly, if indeed it is not accessible
to someone with a mobility impairment, that other ways to provide the
information at that facility could be delivered like a video tape or
something on the web site that somebody could have access to.
Jana Copeland: Sure, there's lots of technologies out there. For folks that are
out there who are with Title II entities, Pat, can you suggest maybe
some action steps or some actions that they can take to start to get
into compliance with the ADA?
Pat Going: Well, to keep it somewhat straightforward, there are actually five
action steps and we'll just hit these real quickly, Jana that somebody
should go through and then I'd like to point out some of the really good
resources that are available for free where somebody can take their time
and go through all of this and also feel very comfortable in contacting
their local ADA Center at our 800 number: 1-800-949-4232, which is voice
as well as TTY.
So the five action steps will be:
Step 1: Designate a responsible employee, somebody who really takes the
task on of learning the ADA and being the point person.
Step 2: Providing notice in a public way of the ADA requirements that this
particular Title II entity is accepting and embarking on to comply with.
Step 3 is a grievance procedure that oftentimes is a way for someone
within the area if indeed they had a question or they feel like they
were being discriminated against, that there was a way to communicate that
concern.
Step 4 is to conduct a self-evaluation, and
Step 5 is, from the self-evaluation, develop a transition plan.
The Department of Justice at ADA.GOV has common questions about Title II
of the ADA, which is quite good, including also Title II highlights that
might be really catching those high points that would remind somebody of
what they need to be doing. Our colleagues out of Region One created
the Title II action guide. It has quite a few checklists, and really
a way to, in a sequential method, to evaluate programs and develop that
transition plan and there there is also some more specific guidance for
small towns which sometimes don't have near the personnel or financial
budget to go into some of the detail that the larger state and local
governments are required to do.
Jana Copeland: Pat, I think I also heard that Department of Justice has also launched
a relatively new online course that deals with Title II access and a
toolkit that they've developed, is that true?
Pat Going: That is very true and quite a timely question. I believe this came
out oh just a month or two ago and it is a self-paced course.
I've had an opportunity to look at it in a cursory way and it is really
well done. I'm so glad you reminded all our listeners of that resource.
Jana Copeland: Yes but that one, actually, the web course is actually from our
colleagues out of Region Four in the Southeast DBTAC that put that
together and they can actually find that information at adacourse.org
and be able to get registered and signed up for the Title II webcourse
and then of course the toolkit that the Department of Justice has put
together is available at ADA.GOV as well. Do you have any other closing
comments, Pat, before we wrap up today?
Pat Going: Well, I just want to remind anybody that's dealing with Title II
entities, either as a citizen or actually as part of the organization,
that you do not need to start from scratch. There's just so much good
guidance, do call upon one of the ten ADA Centers; they are there to
help in a very user-friendly way and I think that everyone will find
that when they get into it, this is just such good common sense.
It also relates to our senior population and serving those folks that
are taking advantage of all of our state and local governments also.
This also has a little bit of influence too, Jana, on voting and it is
going to be such a major subject for us all as the upcoming elections
are in place and all of us want to go and cast our vote, so all of these
things are very related.
Jana Copeland: Absolutely! Well Pat, thank you very much for your time today and
giving us a little bit of a taste of the requirements of the Title II
of the Americans With Disabilities Act. As you said, if anyone has any
other questions or needs additional clarification or information, they
can get this information at their local ADA Center at 1-800-949-4232 and
that's both voice and TTY. Thanks Pat and to all, have a great day!
Pat Going: Great, thank you Jana!
Beth: I hope you all found that informative. The Americans with Disabilities Act can be a little bit confusing, so if you have any questions about the Americans with Disabilities Act or any other disability related laws, you can contact the ADA Centers at 1-800-949-4232. And you can listen to all the past episodes of the Disability Law Lowdown and read the transcripts at dll.ada-podcast.com. The Disability Law Lowdown would like to thank their sponsor, the National Institute of Disability Research and Rehabilitation. And I would like to thank the Disability Law Lowdown for letting me guest host. If you would like to listen to another disabilty-related podcast, be sure and visit my show at disability411.jinkle.com. Thanks again. And you've been listening to the Disability Law Lowdown.
The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232.
This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.