State and Local Governments Responsibilities Under the ADA (Title II Provisions)

Who is covered under Title II of the ADA?

Title II Provisions of the ADA cover "public entities" which are State and local governments. Any departments or agencies of State and local governments are considered public entities and must adhere to Title II regulations.

All activities, services, and programs of these public entities are covered, including:

Public transportation services operated by State and local governments are covered by regulations of the Department of Transportation. DOT's regulations establish specific requirements for transportation vehicles and facilities, including a requirement that all new busses must be equipped to provide services to people who use wheelchairs.

Does a public entity have to receive Federal funds to be covered under the ADA?

No. Unlike section 504 of the Rehabilitation Act of 1973, which only covers programs receiving Federal financial assistance, title II extends to all the activities of State and local governments whether or not they receive Federal funds.

What are state and local governments obligations under the ADA?

State and local governments --

• May not refuse to allow a person with a disability to participate in a service, program, or activity simply because the person has a disability. For example, a city may not refuse to allow a person with epilepsy to use parks and recreational facilities.
  
  
• Must provide programs and services in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity.
  
  
• Must eliminate unnecessary eligibility standards or rules that deny individuals with disabilities an equal opportunity to enjoy their services, programs or activities unless "necessary" for the provisions of the service, program or activity.

  Requirements that tend to screen out individuals with disabilities, such as requiring a driver's license as the only acceptable means of identification, are also prohibited.

  Safety requirements that are necessary for the safe operation of the program in question, such as requirements for eligibility for drivers' licenses, may be imposed if they are based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.

• Are required to make reasonable modifications in policies, practices, and procedures that deny equal access to individuals with disabilities, unless a fundamental alteration in the program would result.
  For example, a city office building would be required to make an exception to a rule prohibiting animals in public areas in order to admit guide dogs and other service animals assisting individuals with disabilities.
  
  
• Must furnish auxiliary aids and services when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result.
  
  
• May provide special benefits, beyond those required by the regulation, to individuals with disabilities.
  
  
• May not place special charges on individuals with disabilities to cover the costs of measures necessary to ensure nondiscriminatory treatment, such as making modifications required to provide program accessibility or providing qualified interpreters.
  
  
• Shall operate their programs so that, when viewed in their entirety, they are readily accessible to and usable by individuals with disabilities.

State and local governments meet the above obligations under the ADA by providing program access, integrated programs or services in integrated settings, effective communication, and accessible facilities.

Program Access
State and local governments--

• Must ensure that individuals with disabilities are not excluded from services, programs, and activities because buildings are inaccessible.
  
  
• Need not remove physical barriers, such as stairs, in all existing buildings, as long as they make their programs accessible to individuals who are unable to use an inaccessible existing facility.
  
  
• Can provide the services, programs, and activities offered in the facility to individuals with disabilities through alternative methods, if physical barriers are not removed, such as --
  Relocating a service to an accessible facility, e.g., moving a public information office from the third floor to the first floor of a building.
  
  
• Providing an aide or personal assistant to enable an individual with a disability to obtain the service.
  
  
• Providing benefits or services at an individual's home, or at an alternative accessible site.
  May not carry an individual with a disability as a method of providing program access, except in oemanifestly exceptionalî circumstances.
  
  
• Are not required to take any action that would result in a fundamental alteration in the nature of the service, program, or activity or in undue financial and administrative burdens. However, public entities must take any other action, if available, that would not result in a fundamental alteration or undue burdens but would ensure that individuals with disabilities receive the benefits or services.
  

Integrated Programs
Integration of individuals with disabilities into the mainstream of society is fundamental to the purposes of the Americans with Disabilities Act.

Public entities may not provide services or benefits to individuals with disabilities through programs that are separate or different, unless the separate programs are necessary to ensure that the benefits and services are equally effective.

Even when separate programs are permitted, an individual with a disability still has the right to choose to participate in the regular program. For example, it would not be a violation for a city to offer recreational programs specially designed for children with mobility impairments, but it would be a violation if the city refused to allow children with disabilities to participate in its other recreational programs.

State and local governments may not require an individual with a disability to accept a special accommodation or benefit if the individual chooses not to accept it.

Communications
State and local governments must ensure effective communication with individuals with disabilities.

Where necessary to ensure that communications with individuals with hearing, vision, or speech impairments are as effective as communications with others, the public entity must provide appropriate auxiliary aids.

• "Auxiliary aids" include such services or devices as qualified interpreters, assistive listening headsets, television captioning and decoders, telecommunications devices for deaf persons (TDD's), videotext displays, readers, taped texts, Brailled materials, and large print materials.
  
  

A public entity may not charge an individual with a disability for the use of an auxiliary aid.
Telephone emergency services, including 911 services, must provide direct access to individuals with speech or hearing impairments.

Public entities are not required to provide auxiliary aids that would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. However, public entities must still furnish another auxiliary aid, if available, that does not result in a fundamental alteration or undue burdens.

New Construction and Alterations
The ADA does not require retrofitting of existing buildings to eliminate barriers, but does establish a high standard of accessibility for new buildings.

Public entities may choose between two technical standards for accessible design: The Uniform Federal Accessibility Standard (UFAS), established under the Architectural Barriers Act, or the Americans with Disability Act Accessibility Guidelines, adopted by the Department of Justice for places of public accommodation and commercial facilities covered by title III of the ADA.

Newly constructed buildings and facilities are required to be free of architectural and communication barriers that restrict access or use by individuals with disabilities. Accessiblity guidelines (ADAAG) are provided to ensure compliance with the ADA.

When a public entity makes alterations to an existing building, it must also ensure that the altered portions are accessible.