ADA & IT InFocus Volume 11, Number 1
Winter 2006
ADA and IT Issues: Training News and Events
Affiliates News:
ADA Rulings: What’s New: ADA & IT IN FOCUS is published three times yearly by the ADA & IT Information Center for the Mid Atlantic Region. It is posted to the web on the “Publications” page at www.adainfo.org. It is also available by request in large print, Braille, audio cassette, and computer disk.
Richard G. Luecking, President TransCen, Inc. is a Rockville, MD based firm specializing in human resources issues that impact workplace diversity. TransCen administers the ADA & IT Information Center, providing business and technical assistance to DE, DC, MD, PA, VA and WV.
This is a publication of the ADA & IT Information Center, funded by the National Institute on Disability and Rehabilitation Research of the U.S. Dept. of Ed. (Grant # H133D010212). The opinions contained in this publication are those of the grantee and do not necessarily reflect those of the Dept. of Education.
ADA & IT Information Center ADA and IT ISSUES:
STATE AND LOCAL GOVERNMENT: PROGRAM ACCESS
Title II of the ADA covers the “services, programs, or activities” of public entities, which include state and local governments, as well as the National Railroad Passenger Corporation (Amtrak) and any commuter authority which provides commuter rail transportation.
The application of Title II is broad, and is intended to cover virtually everything that state and local governments do. Regulatory authority is divided between the U.S. Department of Transportation (DOT), which addresses matters related to public transportation, and the U.S. Department of Justice (DOJ), which oversees all other general issues.
Discrimination Prohibited
Title II says that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
A “qualified individual with a disability” is defined as one “... who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”
While basic “qualification” for a program or service may be based on non-discriminatory eligibility requirements (for example, “you must be a resident of the county to attend the county’s swimming class”), it can not be based solely on disability (for example, “blind people are not permitted to attend the county’s swimming class”). The ADA requires covered entities to “factor in” reasonable modifications, barrier removal activities, or auxiliary aids and services before they assume people with disabilities are unable to participate in programs due to their disabilities.
Eligibility criteria that “screen out” people with disabilities must be “necessary” to the program. Rules and policies related to safety must not be based on assumptions or stereotypes.
Policy Modifications
Reasonable modifications in policies and practices must be made unless it would “fundamentally alter” the nature of the program or service. Reasonable policy modifications may encompass things like allowing service animals in facilities where animals are typically barred, or making an exception to a city zoning ordinance to allow the construction of an access ramp.
According to DOJ, the term “fundamental alteration” means a modification that is “so significant” that it changes the “essential nature” of the program.
Effective Communication
Covered entities must also provide auxiliary aids and services (such as interpreter services, assistive listening devices, Braille, large print, or electronically formatted materials, etc.) to ensure effective communication, as long as it does not cause a fundamental alteration in the program, or impose an “undue burden” upon the entity. DOJ defines an “undue burden” as a “significant difficulty or expense.”
The determination that providing a particular auxiliary aid or service will result in a fundamental alteration or an undue burden must be made by the head of the public agency, or a similar high level official with decision-making authority. The decision about undue burdens must take into consideration all resources available to the program.
“Primary consideration” must be given to the preference of the individual with a disability when choosing the specific auxiliary aid or service provided. If the individual with a disability requests a sign language interpreter, one should be provided unless the entity can show that an equally effective method of communication is available, or that providing an interpreter would result in a fundamental alteration or an undue burden.
Program Access in Existing Facilities
There is no question that access to programs and activities usually necessitates access to facilities, and this is relevant for people with many types of disabilities. While the law and regulations establish minimum standards for the construction and alteration of facilities, a vast array of state and local government programs are provided in existing facilities. These facilities vary considerably both in age and type, ranging from parks and schools to courthouses and hospitals.
Because it would be virtually impossible to achieve accessibility (or, perhaps more accurately, conformance with modern standards) in every older building in use by public entities, the ADA establishes the “program access” standard. This standard, in relation to architectural access, might be considered the cornerstone of Title II.
The Department of Justice, in its regulation for Title II, makes it clear that state and local governments are not required to remove all structural barriers in existing facilities, as long as people with disabilities have a meaningful opportunity to participate in and benefit from services and programs, and to do so in the most integrated way possible.
In order to ensure that individuals with disabilities who are eligible to receive services or participate in programs are able to do so, state and local governments may employ a variety of means. Sometimes structural changes will be necessary, whether to afford the basic opportunity for people to access a program, or to ensure the integrated nature of their participation.
However, there are times when alternate means are acceptable and appropriate. Programs may be relocated to accessible facilities, equipment may be utilized, or assistance provided.
Surcharges
Measures taken to comply with Title II will obviously entail costs in some, though not all, cases. State and local governments can never charge people with disabilities specifically for these expenses. For instance, a community college can not charge a student who is deaf an extra “registration” fee to cover the costs of providing interpreter services in classes. Neither can the college recover costs of building ramps, widening doorways, or other barrier removal activities undertaken on the campus by charging an extra fee to all students with any type of disability who request academic adjustments through the “Disability Support Office.”
Next Steps
It is important to remember that when any action that is needed to ensure access and opportunity results in a fundamental alteration or an undue burden, a covered entity must take any action that does not cause such alterations or burdens and that will allow participation.
For example, if, despite diligent efforts to obtain interpreter services for a public meeting, no interpreter can be found, alternatives should be explored with the individual who made the request. Perhaps providing a notetaker would be of some value. There may be other alternatives that the individual could suggest. The important thing is that individuals with disabilities and their state and local governments communicate and work together to resolve issues of access and participation.
TITLE II PUBLICATIONS
The following publications are available from the Department of Justice online at www.ada.gov, or call the ADA & IT Information Center to obtain your copy:
ADA TITLE II ACTION GUIDE
This excellent publication from Adaptive Environments Center provides a step-by-step outline of Title II compliance, including action steps and worksheets for implementation. It is available from the ADA & IT Information Center; call us at 1-800-949-4232 V/TTY.
CALLING ALL VIRGINIA ADA COORDINATORS!
The Virginia ADA Education Coalition, affiliate of the ADA & IT Information Center, is developing a Title II Directory. The directory, listing state and local government agencies’ “ADA Coordinators,” will be published in print and to the Web. The information will serve as a resource to the public, as well as to the public entities and Coordinators, facilitating a peer-support network and promoting best practices. To find out more or to be included in the directory, contact Kelly Gonzalez at the Endependence Center in Norfolk: 757-461-8007 (Voice), 757-461-7527 (TTY), or e-mail kgonzalez@endependence.org
TRAINING NEWS AND EVENTS
Your Power, Your Choice
STATE AND LOCAL GOVERNMENTS: PROGRAM ACCESS
Marian Vessels, Project Director
Nancy Horton, Assistant Director
Marissa Johnson, Director of Training
Rachel Margolis, Technical Assistance Specialist
David Stewart, Technical Assistance Specialist
Mark Derry, Training Consultant
Traci Lemon, Office Manager
451 Hungerford Dr., Suite 607
Rockville, MD 20850 4151
TEL: 301 217 0124 V/TTY
FAX: 301 217 0754
Toll-free: 800 949 4232 V/TTY
E-mail: adainfo@transcen.org
URL: www.adainfo.org
© 2006 by TransCen, Inc.
Public Law 101-336
(The Americans with Disabilities Act)
28 CFR PART 35
Nondiscrimination on the Basis of Disability in State and Local Government Services (Title II regulation)
ADA Design Standards for Buildings and Facilities
Title II Technical Assistance Manual
ADA Guide for Small Towns
Cities and Counties: First Steps toward Solving Common ADA Problems
Commonly Asked Questions about the ADA and Law Enforcement
Accessibility of State and Local Government Websites to People with Disabilities
An ADA Guide for Local Governments: Making Community Emergency Preparedness and Response Programs Accessible to People with Disabilities
ADA Checklist for Polling Places
Webb Center, Old Dominion University, Norfolk, VA: March 10, 2006
Workshop sessions will address a variety of topics, including alternatives to guardianship, accessible sports and recreation, transition to competitive employment, Social Security work incentives, adapting to disability, transportation, transition from high school to college, and more. Also, the recent Hampton Roads SOL Film Festival winner for the most compelling documentary, Nick, Luke and Linda, will be shown.
or call JoAnn Ervin at 757-683-3639 (V/Relay)
National ADA Symposium and Expo
St. Louis, MO: April 10 - 12, 2006
Sponsored by the national network of ADA & IT Centers, this is the premier national conference on the Americans with Disabilities Act and disability law.
or call 1-800-949-4232 V/TTY
ADAAG Training: Basic and Advanced
Morgantown, WV: Coming this spring!
These trainings on the ADA Accessibility Guidelines will be presented by popular trainer Mark Derry.
ADA AUDIO CONFERENCE SERIES
The 2005-2006 ADA Audio Conference program includes an exciting series of sessions on topics ranging from emergency planning in the workplace to creating accessible play spaces. This year, in addition to the teleconferencing and online real-time captioning, sessions are available through online streaming audio. Check out the www.ada-audio.org web site or call 1-800-949-4232 V/TTY to learn more!
This year the Great Lakes regional ADA & IT inaugurated an audio-conference series in Spanish! These sessions, presented by experts in the disability law field, are FREE! Visit www.adagreatlakes.org/Spanish/PnServices/AudioConferencing/ or call 1-800-949-4232 V/TTY for more information.
www.adainfo.org/training/
CONSORTIUM PARTNERS: ADVANCING ACCESSIBLE IT
The Mid-Atlantic Accessible Education-Based Information Technology Consortium, comprised of the region’s six state programs funded under the Assistive Technology Act, experienced a productive year in 2005.
The partners continue to work in their respective states, as well as collaboratively, promoting the use of accessible information technology in educational settings at every level. Information, materials, technical assistance, and training sessions are provided for educational entities ranging from elementary schools to universities, as well as related state government departments and agencies.
Some highlights of recent activities and accomplishments:
The Delaware project is working in close cooperation with the Delaware Department of Education to promote awareness and develop expertise related to Universal Design for Learning (UDL). This initiative includes training and demonstrations for all teachers as well as state and district personnel. Training includes a focus on the accessibility of software products commonly deployed in educational environments (e.g. Word and PowerPoint).
The Maryland project supports AT:LAST (Assistive Technology: Loans, Acquisitions, Services, and Training, also known as the Maryland AT Cooperative) to enable educational institutions to expand their cooperative purchasing power to include accessible information technology (IT) as well as assistive technology (AT).
The West Virginia project, in collaboration with Homeland Security Programs at West Virginia University, developed the Handbook on Special Needs and Emergencies to provide guidance on how to design accessible emergency planning courses and curricula. Find the handbook online through www.cedwvu.org/programs/dbtac/
If you are an educator, administrator, student, or parent interested in accessible technology, contact your state’s Assistive Technology project (information below).
TO CONTACT OUR AFFILIATES:
State ADA Coalitions:
MD – 800-949-4232 V/TTY
E-MAIL – adainfo@transcen.org
DC – 202-388-0033 or 202-388-0277 TTY
E-MAIL – hgalmore@dccil.org
DE – 302-376-4399 v or 302-376-4397 TTY
E-MAIL – vkelsey@fcilde.org
WV – 800-946-9471 V/TTY
E-MAIL – ADAcoalition@aol.com
VA – 757-461-8007 V or 757-461-7527 TTY
E-MAIL – kgonzalez@endependence.org
PA – 570-327-9070 V or 570-327-5254 TTY
E-MAIL – communityorganizer@cilncp.org
State Assistive Technology Programs:
MD – 800-832-4827 V or 866-881-7488 TTY
WEB – www.mdtap.org
DC – 202-547-0198 V or 202-547-2657 TTY
WEB – www.atpdc.org
DE – 800-870-3284 V/TTY (IN STATE ONLY)
WEB – www.dati.org
WV – 800-841-8436 V/TTY (IN STATE ONLY)
WEB – www.cedwvu.org/programs/wvats
VA – 800-552-5019 V/TTY (IN STATE ONLY)
WEB – www.vats.org
PA – 800-204-7428 V/RELAY (IN STATE ONLY)
WEB – http://disabilities.temple.edu/programs/assistive/index.htm
ADA RULINGS
DECISIONS AND SETTLEMENTS
Supreme Court: Damages Available from States for Constitutional Violations
The Supreme Court issued its decision in the case of the United States v. Georgia (combined with Goodman v. Georgia). The Court held that an individual can sue for money damages when a state’s discriminatory actions violate the Constitution, which guarantees due process and equal protection under the law.
This case arose when Tony Goodman filed a lawsuit challenging the conditions of his confinement at the Georgia State Prison. He claimed that he was kept for 23 to 24 hours a day in a cell in which he could not turn around in his wheelchair, was unable to use the toilet or bathing facilities safely and independently, and was denied assistance, medical treatment, and access to virtually all of the prison system’s programs and services.
The issue that was brought before the Supreme Court was, once again, states’ immunity. Congress has limited authority to subject states to claims for monetary damages, and whether that authority was exceeded when Title II of the ADA was enacted has been addressed by the Court before.
In the University of Alabama v. Garrett, the Court held that Congress exceeded its authority when it created the potential for individuals to obtain monetary damages from states which violate the employment provisions of the ADA. The Court found insufficient record of Constitutional violations by states in relation to employment practices.
However, in this case, the Court noted that Mr. Goodman alleged at least some actions that violated his Constitutional rights. The matter will be sent back to the lower court to determine a final outcome.
Settlement for Deaf Man Jailed in DC
Joseph Heard, the deaf man who was mistakenly kept in a D.C. jail for nearly two years after a judge ordered his release, will receive over a million dollars in the settlement of the case.
Mr. Heard alleged that he was never provided with interpreter services or other means of effective communication, despite repeated attempts to convey his concerns to staff at the facility.
The District and the private contractor that was responsible for providing health services at the jail will share the cost of the settlement. The money will be placed into a trust to help with Mr. Heard’s living expenses.
Jury Awards $3 Million to Federal Worker in Telecommuting Case
A jury in the District of Columbia awarded $3 million to Lisa Bremer, an attorney with multiple sclerosis who worked for the U.S. Department of Commerce.
Ms. Bremer had worked at home two days a week for years, but her job duties changed in 2002, and her employer insisted she work in the office full time. Ms. Bremer claimed that a reasonable telecommuting schedule could have been devised. The jury agreed, and found that the withdrawal of her accommodation violated the law.
The Rehabilitation Act, like the ADA, places a cap on damages, so the award will be reduced to $300,000.
Jury Awards $3.4 Million to Former Head of Pennsylvania State Agency
A jury found in favor of Christine Boone, the former director of the Pennsylvania Bureau of Blindness and Visual Services, who sued the state after she was fired. Ms. Boone, who also named two of the agency’s executives in her lawsuit, claimed that she was fired because of her disability and that the executives made “false, defamatory, and stigmatizing statements” that called into question her “good name, reputation, and professional qualifications” and made it difficult for her to obtain other employment.
The award includes $180,000 in front pay, as well as $1.5 million in compensatory damages for emotional distress that each of the executives was ordered to pay.
New Fact Sheets from EEOC
The U.S. Equal Employment Opportunity Commission has released two new fact sheets about specific provisions of Title I of the ADA.
Questions and Answers About Blindness and Vision Impairments in the Workplace and the ADA is online at www.eeoc.gov/facts/blindness.html
Questions and Answers About the Association Provision of the ADA, which discusses discrimination against qualified applicants or employees based on their relationship with an individual or group of people with disabilities, is online at www.eeoc.gov/facts/association_ada.html
Employment Resources from ODEP
The Office of Disability Employment Policy (ODEP) in the U.S. Department of Labor offers a comprehensive collection of publications of interest to both employers and workers with disabilities. Recent additions include:
Diverse Perspectives: People with Disabilities Fulfilling Your Business Goals
Strategic Connections: Recruiting Candidates with Disabilities
Focus on Ability: Interviewing Applicants with Disabilities
Opening Doors to All Candidates: Tips for Ensuring Access for Applicants with Disabilities
Investing in People: Job Accommodation Situations and Solutions
Effective Emergency Preparedness Planning: Addressing the Needs of Employees with Disabilities
Cultivating Leadership: Mentoring Youth with Disabilities
Interviewing Essentials: Strategies for Creating a Positive Impression
Find these and other useful materials online at www.dol.gov/odep/pubs/publicat.htm
New Guidance from DOT
The U.S. Department of Transportation has issued four new guidance documents that provide helpful clarification on public transportation issues. The new documents include:
Origin-to-Destination Service (paratransit)
Use of “Segways” on Transportation Vehicles
Paratransit Requirements for §5311-Funded Fixed-Route Service Operated by Private Entities
Full-Length, Level-Boarding Platforms in New Commuter and Intercity Rail Stations
Find the documents online at www.fta.dot.gov/14531_17511_ENG_HTML.htm
DOT: Resources for Air Travel
The Aviation Consumer Protection Division at the U.S. Department of Transportation has developed new resources to assist airlines and air travelers with disabilities.
Find Air Travelers With Disabilities: Technical Assistance Manual for Airline Employees, Contractors, and Travelers, as well as information about the Passengers With Disabilities: Model Training Program for Airlines online at http://airconsumer.ost.dot.gov/pubs.htm.
No Internet Access?
If you are not able to obtain online publications,
call the ADA & IT Information Center,
1-800-949-4232 V/TTY.
We will be happy to assist you!
WEB SITES
http://math-and-reading-help-for-kids.org/ This site has articles and games for children, parents and teachers.
www.lekotek.org/ This organization offers information on toys and play for children with disabilities. They also offer an “Ask an Expert” feature and a toll free “Toy Resource Helpline” (800-366-PLAY).
www.brailleink.org/ This organization prints children’s books in a format that preserves the original print and illustrations on one part of the page, while adding Braille and its aligned, one-to-one print translation on another part of the page. The books are designed to facilitate a shared reading experience for print- and Braille-readers. Some titles are produced with contracted Braille, and others with uncontracted; a Braille glossary is included in each book. BrailleInk, located in Denton, Texas, can also be contacted via toll free telephone: 800-324-2919.
www.pacer.org/ The Parent Advocacy Coalition for Educational Rights (PACER) Center works to expand opportunities and enhance the quality of life for children and young adults with disabilities.
www.adainfo.org/whatsnew/#bullying Check out the “Resources for the School Year: Bullying” section at our “What’s New” page. You’ll find a host of links to information, resources, tips, games, and activities for kids, parents, and educators.
ADA & IT In Focus is intended for use by individuals, state and local governments, businesses, legal entities, and others interested in developments in the Americans with Disabilities Act. This publication is intended solely as an informal guidance and should not be construed as legally binding. ADA & IT In Focus does not serve as determination of the legal rights or responsibilities under the ADA for any individual, business or entity.
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