I. Who is Covered by Title II of the ADA

 

- The title II regulation covers "public entities."

 

- "Public entities" include any State or local government and

any of its departments, agencies, or other instrumentalities.

 

- All activities, services, and programs of public entities are

covered, including activities of State legislatures and courts,

town meetings, police and fire departments, motor vehicle

licensing, and employment.

 

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.

 

- Private entities that operate public accommodations, such as

hotels, restaurants, theaters, retail stores, dry cleaners,

doctors' offices, amusement parks, and bowling alleys, are not

covered by title II but are covered by title III of the ADA and the

Department's regulation implementing title III.

 

- 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.

 

II. Overview of Requirements

 

- 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.

 

III. "Qualified Individuals with Disabilities"

 

- Title II of the Americans with Disabilities Act provides

comprehensive civil rights protections for "qualified individuals

with disabilities."

 

- An "individual with a disability" is a person who --

 

Has a physical or mental impairment that substantially limits

a "major life activity," or

 

Has a record of such an impairment, or

 

Is regarded as having such an impairment.

 

- Examples of physical or mental impairments include, but are

not limited to, such contagious and noncontagious diseases and

conditions as orthopedic, visual, speech, and hearing impairments;

cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,

cancer, heart disease, diabetes, mental retardation, emotional

illness, specific learning disabilities, HIV disease (whether

symptomatic or asymptomatic), tuberculosis, drug addiction, and

alcoholism. Homosexuality and bisexuality are not physical or

mental impairments under the ADA.

 

- "Major life activities" include functions such as caring for

oneself, performing manual tasks, walking, seeing, hearing,

speaking, breathing, learning, and working.

 

- Individuals who currently engage in the illegal use of drugs

are not protected by the ADA when an action is taken on the basis

of their current illegal use of drugs.

 

- "Qualified" individuals.

 

A "qualified" individual with a disability is one who meets

the essential eligibility requirements for the program or activity

offered by a public entity.

 

The "essential eligibility requirements" will depend on the

type of service or activity involved.

 

For some activities, such as State licensing programs, the

ability to meet specific skill and performance requirements may be

"essential."

 

For other activities, such as where the public entity provides

information to anyone who requests it, the "essential eligibility

requirements" would be minimal.

 

IV. 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 "manifestly exceptional"

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.

 

V. 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.

 

VI. 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.

 

VII. New Construction and Alterations

 

- Public entities must ensure that newly constructed buildings

and facilities are free of architectural and communication barriers

that restrict access or use by individuals with disabilities.

 

- When a public entity undertakes alterations to an existing

building, it must also ensure that the altered portions are

accessible.

 

- 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.

 

The elevator exemption for small buildings under ADA

Accessibility Guidelines would not apply to public entities covered

by title II.

 

VIII. Enforcement

 

- Private parties may bring lawsuits to enforce their rights

under title II of the ADA. The remedies available are the same as

those provided under section 504 of the Rehabilitation Act of 1973.

A reasonable attorney's fee may be awarded to the prevailing party.

 

- Individuals may also file complaints with appropriate

administrative agencies.

 

The regulation designates eight Federal agencies to handle

complaints filed under

title II.

 

Complaints may also be filed with any Federal agency that

provides financial assistance to the program in question, or with

the Department of Justice, which will refer the complaint to the

appropriate agency.

 

IX. Complaints

 

- Any individual who believes that he or she is a victim of

discrimination prohibited by the regulation may file a complaint.

Complaints on behalf of classes of individuals are also permitted.

 

- Complaints should be in writing, signed by the complainant or

an authorized representative, and should contain the complainant's

name and address and describe the public entity's alleged

discriminatory action.

 

- Complaints may be sent to --

 

Coordination and Review Section

Civil Rights Division

U.S. Department of Justice

P.O. Box 66118

Washington, D.C. 20035-6118.

 

- Complaints may also be sent to agencies designated to process

complaints under the regulation, or to agencies that provide

Federal financial assistance to the program in question.

 

X. Designated Agencies

 

The following agencies are designated for enforcement of title

II for components of State and local governments that exercise

responsibilities, regulate, or administer services, programs, or

activities in the following functional areas --

 

(1) Department of Agriculture: Farming and the raising of

livestock, including extension services.

(2) Department of Education: Education systems and institutions

(other than health-related schools), and libraries.

(3) Department of Health and Human Services: Schools of medicine,

dentistry, nursing, and other health-related schools; health care

and social service providers and institutions, including

"grass-roots" and community services organizations and programs;

and preschool and daycare programs.

(4) Department of Housing and Urban Development: State and local

public housing, and housing assistance and referral.

(5) Department of Interior: Lands and natural resources,

including parks and recreation, water and waste management,

environmental protection, energy, historic and cultural

preservation, and museums.

(6) Department of Justice: Public safety, law enforcement, and

the administration of justice, including courts and correctional

institutions; commerce and industry, including banking and finance,

consumer protection, and insurance; planning, development, and

regulation (unless otherwise assigned); State and local government

support services; and all other government functions not assigned

to other designated agencies.

(7) Department of Labor: Labor and the work force.

(8) Department of Transportation: Transportation, including

highways, public transportation, traffic management (non-law

enforcement), automobile licensing and inspection, and driver

licensing.

 

 

 

XI. Technical Assistance

 

- The ADA requires that the Federal agencies responsible for

issuing ADA regulations provide "technical assistance."

 

- Technical assistance is the dissemination of information

(either directly by the Department or through grants and contracts)

to assist the public, including individuals protected by the ADA

and entities covered by the ADA, in understanding the new law.

 

- Methods of providing information include, for example,

audio-visual materials, pamphlets, manuals, electronic bulletin

boards, checklists, and training.

 

- The Department issued for public comment on December 5, 1990,

a government-wide plan for the provision of technical assistance.

 

The Department's efforts focus on raising public awareness of

the ADA by providing--

Fact sheets and pamphlets in accessible formats,

 

Speakers for workshops, seminars, classes, and conferences,

 

An ADA telephone information line, and

 

Access to ADA documents through an electronic bulletin board

for users of personal computers.

 

- The Department has established a comprehensive program of

technical assistance relating to public accommodations and State

and local governments.

 

Grants will be awarded for projects to inform individuals with

disabilities and covered entities about their rights and

responsibilities under the ADA and to facilitate voluntary

compliance.

 

The Department will issue a technical assistance manual by

January 26, 1992, for individuals or entities with rights or duties

under the ADA.

 

For additional information, contact:

 

Office on the Americans with Disabilities Act

Civil Rights Division

U.S. Department of Justice

P.O. Box 66118

Washington, D.C 20035-6118

(202) 514-0301 (Voice)

(202) 514-0383 (TDD)

(202) 514-6193 (Electronic Bulletin Board).

 

 

 

 

.TCEL.