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Hi, this is Jacquie Brennan. Welcome to the Disability Law Lowdown.

Today’s podcast is going to be an overview of Title Two of the Americans with Disabilities Act. If you’re looking for an overview of the ADA in its entirety, you can check another podcast in our archives. This one is just going to focus on Title Two. Title Two of the ADA covers state and local governments, and it covers all of the programs and activities as well as the buildings of state and local governments.

And really we’re going to focus the most today on the actual programs and activities of state and local governments. Some of these that are included in this are any services or benefits like food stamps or welfare that is a program of the state or local government, voting and election of state or local officials, courts, all levels of courts, of state or local courts, and all activities of the courts are covered, parks and recreation programs, libraries are covered by Title Two, jails and prisons, town meetings, police, sheriff, fire departments are all covered, licensure and registrations like getting marriage licenses or voter registration, fishing licenses or hunting licenses, those are all covered under Title Two of the ADA. Public schools are covered in terms of their programs and activities, although children who have disabilities may be served under Section 504 of the Rehabilitation Act or under the Individuals with Disabilities in Education Act. Still the ADA does cover those public schools. Also public hospitals that are owned by state or local government entities, clinics, counseling centers, psychiatric facilities, probation departments, parole offices are all covered under Title Two of the ADA. Public transportation is also covered under Title Two of the ADA, although we’re not going to focus too much on that in this particular podcast because we’re going to do a separate podcast on transportation. Any entity that contracts with any government agency, so sometimes governments will have contracts with private entities to provide government services, so when they so that, that private entity also falls under Title Two of the ADA.

Now, the non- discrimination requirements of Title Two include, of course, that people with disabilities cannot be excluded from the programs or activities of state and local governments, and they must be served in, as much as possible, integrated settings. Now under this integrated setting piece, they do have an allowance for special programs. So, it’s fine for a parks and recreation department, for example, to have wheelchair basketball or wheelchair volleyball, you know, activities that are specific to a disability. But what it is not all right to do is to say that that is the only setting in which that person with a disability can participate in the program. Participation in separate programs cannot be a requirement. Accommodations must be offered in regular programs and the individual does have the right to refuse an accommodation.

So here’s an example: a city parks and recreation department offers particular programs for people with disabilities like adaptive exercise classes or wheelchair basketball in additional to an extensive selection of other aerobics and sports classes. Would it be okay to exclude Dave who is an individual with a mobility disability from a regular aerobics classes because there’s an adaptive exercise class that’s available? No, of course not. That is not going to be allowed under the ADA. It’s fine for them to have the adaptive exercise class, but they still have to allow Dave to take the regular aerobics class.

Now, eligibility criteria for different programs and activities that are offered by state and local governments cannot screen out individuals with disabilities. They can’t apply eligibility requirements that tend to screen out people with disabilities unless those requirements are necessary for the provision of goods and services. Now it’s okay for them to impose legitimate safety requirements as long as they’re based on actual risks and facts about particular individuals, but not on speculation or stereotypes. Any safety standard must be applied to all participants and must be limited to all participants.

So is it all right for a county library to require that an individual have a driver’s license in order to obtain a library card as long as they require that every person have a driver’s license? Well, no, it wouldn’t be okay to do that because there are some people who, because of their disability, cannot have a driver’s license. The library would have to allow other forms of identification other than just a driver’s license.

How about this one? Is it okay for a county recreation program to prohibit persons who use wheelchairs from participating in a scuba diving class because the program director believes people who use wheelchairs can’t swim well enough to take the class? Well, no, they couldn’t be excluded on that basis, because that’s a generalization or maybe a stereotype about people in wheelchairs being unable to swim, but what if they said okay, people in wheelchairs can take the class as long as they pass a swimming test, would that be okay? No. Again, that wouldn’t be okay unless they require everyone to take the swimming test. If they require a swimming test of all participants, then it would be okay to require that of a participant in a wheelchair.

State and local government entities are required to modify policies. It’s discrimination to fail to make reasonable modifications in policies, practices, and procedures when that’s necessary to afford the goods and services of the government to a person with a disability unless doing so would fundamentally alter the nature of the activities and the services offered.

Okay, how about this? Is it okay for a county general relief program that provides emergency food, shelter, and cash grants to individuals who can demonstrate their eligibility, is it okay for them to refuse to accept applications from individuals with mental impairments who can’t complete the lengthy and complex application process? Of course, no, it isn’t. They have to modify the policy for people who can’t complete the lengthy and complex application process because of a disability.

A taxicab service has a contract with the rapid transit authority and the taxicab service has a “no pets” policy so the taxicab drivers refuse service to individuals who are blind if they use a service animal. Is that okay? No, because the taxicab service cannot refuse, under Title Two, to accept service animals because it has a contract with the state or local government entity, the rapid transit authority. Even if it didn’t, just as an aside, under Title Three of the ADA, even private cab companies are covered. So, no private cab company can lawfully refuse service to an individual who uses a service animal.

Now remember I said a modification in policies is not required when it would fundamentally alter the nature of the service, program, or activity. The easiest example to understand this part is this one. In a city-run planetarium, an individual who is deaf requests that the lights be left on so she can see the American Sign Language interpreter. The planetarium refuses to do that. Is that okay? Well, yes, it probably is okay, because leaving the lights on in the planetarium would fundamentally alter the very nature of a planetarium. So, it would be okay to refuse to leave the lights on so that the person could see the ASL interpreter, but that doesn’t mean they don’t have to modify their policies in some other way. They may be able, for example, to put the individual in an out-of-the-way spot of the planetarium with a small flashlight or a spotlight on the interpreter so everyone could still enjoy the planetarium and the effects of the dark with the lighted stars without disrupting that, so it wouldn’t fundamentally alter the nature of their service, but the individual who is deaf would still be able to follow the program as well as enjoy the star show.

And again, just a reminder, even private entities, if they contract with state and local governments, have obligations under Title Two. If a county, for example, enters into a contract with a private entity to carry out any benefit or service of the county, then the county has to ensure that the activity is carried out in compliance with Title Two. So it isn’t just that the private entity has obligations under Title Two, it’s that the county also has an obligation to ensure that the private entity meets the same requirements that the county itself would have to meet.

It is also unlawful for any state or local government entity to exclude or deny equal services, programs, or activities to an individual or an entity because the county knows of that person’s relationship or association with someone who has a disability. So, a city recreation center refuses to allow a sports team to join a basketball league because the team is made up of volunteers who work with people who are HIV positive. Would that be okay? No, it’s clearly not okay to say that just because you associate with people who are HIV positive that you cannot participate.

The ADA also protects against retaliation by state and local governments. It’s unlawful to discriminate against someone who has advocated for someone else’s rights under the ADA. It’s unlawful to coerce, intimidate, threaten, or interfere with anyone’s enjoyment of their rights under the ADA. So let’s say an attorney who has no disability but volunteers at an independent living center has assisted several clients with ADA complaints against the city and is subsequently barred from registering for a class at the city zoo because the director says they don’t want to start getting a lot of complaints. Is that okay, especially since the attorney doesn’t have a disability? No, it isn’t okay. In this case, even though the attorney has no disability and would ordinarily not be covered by the ADA, the person is covered because of the association and retaliation piece of the ADA.

State and local governments may not impose a surcharge on an individual with a disability or on a group of individuals with disabilities to cover the cost of measures taken to comply with the ADA, such as the provision of auxiliary aids and services. So let’s say a public town hall meeting is held and an individual who has a hearing impairment requests an ADA interpreter. The town provides the interpreter at a cost of a hundred and fifty dollars to the town. They send the citizen a bill for just twenty-five dollars as a surcharge for the interpreter. They have the same surcharge when a foreign language interpreter is requested, so is that okay? Well, no, it is not okay. It is not okay under the ADA, under Title Two of the ADA for a state of local government to do that.

A qualified individual with a disability cannot be denied licensure or certification if the person meets the essential eligibility requirements. Whether particular requirements are essential has to be determined on a case by case basis and licensing examinations must be offered in accessible places. So let’s say a county is in charge of licensing day care centers, but refuses to license a day care center because that center accepts children with disabilities. They refuse to license it because they fear an increased risk of injury. Is that okay? No, that is definitely not okay.

Program accessibility. Title Two requires that a public entity make its programs accessible when each is viewed in its entirety. Now that doesn’t mean that every facility or every part of every facility must be completely accessible. Program accessibility can be achieved by a number of different methods, some of which are: they can redesign equipment, or they can reassign programs to accessible buildings, they can use aids or even home visits, they can deliver the services at an alternate location, they can do this through the use of accessible vehicles, or alteration of existing facilities or even construction of new facilities to achieve program access for people with disabilities.

When choosing among the different methods of program accessibility, a public entity must give priority to those methods that offer services, programs, and activities in the most integrated setting appropriate. So let’s say a county has library facilities located on the ground floor of an existing building that has not been recently renovated. Architectural access is available to the main entrance of the library, the reading room and the restrooms. The library stacks are not wheelchair accessible, but the library staff retrieves books within ten minutes of a request. Computer users in the reading room can use an on-line program that provides information about all books in the same order as the books appear in the stacks. Is that okay, even thought the stacks themselves are not wheelchair accessible? Yes, that is okay because they are still getting the same kind of access in the same amount of time that a person who can actually walk into the stacks is getting.

Here’s another example. To get a fishing or hunting license you must go to the county administrator’s office on the second floor of the county administration office which is accessible only by stairs. Is that okay? No, of course that’s not okay, but it could be okay if they agreed to send someone downstairs if someone needed to visit the office and they were unable to access it.

And remember that state and local government obligations are limited in that these entities are not required to provide program access when it would result in fundamental alteration of the nature of the program or an undue burden. So if it is in an undue burden to provide access or if it would fundamentally alter the nature of the program then the state or local government may not be required to provide that program access. The limitation doesn’t relieve the government agency from providing program access at all, but they may just not have to provide the type of access requested. The state or local government bears the responsibility to prove that this limitation exists.

State and local governments must accomplish equally effective communication with its citizens. They must provide auxiliary aids and services unless doing so would create a fundamental alteration or an undue burden. There are easy ways to make visual communication accessible to individuals who are blind or have low vision. One is to use large print, to have that available, braille, of course, is another, using audio tapes or having readers available, or using computer disks. There are ways to make oral information accessible, including writing, using telephone amplifiers, using assisted listening systems and devices, captioning, text telephones or relay services, interpreters, or computer-aided realtime recording called CART. And there are ways to make spoken information accessible including written notes, text telephones or relay services, computer terminals, speech synthesizers, and communication assistance.

Now remember when using an interpreter, a sign language interpreter, that a qualified interpreter must be used and a qualified interpreter must be able to effectively, accurately, and impartially using necessary specialized vocabulary. Qualified is not the same thing as certified. When determining the necessity of an interpreter, things that should be considered are: the duration of the exchange or meeting, the complexity of the issue to be discussed, the context, the number of people who will be present, and the importance of the event or meeting. The state or local government should give primary consideration to the individual’s choice of the auxiliary aid or service.

So let’s say a woman who is deaf is going to a city office to pay her water bill. She requests that the city have an ASL interpreter present when she pays her bill. The city refuses. Is that okay? Yes, that probably is okay because that’s not a transaction that is very complex, or is going to take a long time, or is very important. But if, for example, she’s going to protest her taxes then that would be an example of a meeting that would require an ASL interpreter if that was what the person needs for effective communication.

So that is just an overview of Title Two. I hope we answered some of your questions with the examples that we had. If you have more questions you know that you can contact us at 1-800-949-4232.

I hope you enjoyed this podcast and that you’ll tune in again to the Disability Law Lowdown which is hosted by the ADA Centers, a national network of ten Disability Business Technical Assistance Centers, offering training, materials, and technical assistance on the Americans with Disabilities Act and other disability related laws.

We can be reached, again, by calling 1-800-949-4232. The ADA Centers are funded by a grant from NDRR. Go to our website at dll.ada-podcast.com to listen to our archived podcasts and to get transcripts of our podcasts. Subscribe for free to Disability Law Lowdown on the website or through iTunes to make sure you never miss an episode.

Thanks again for tuning in and have a dazzling day!





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.