ADA in Focus: Fall 2018

Volume 22, Number 3

ADA In Focus is published three times yearly by the Mid-Atlantic ADA Center. It is also available by request in large print, Braille, audio CD, and computer disk. To obtain copies in other formats, contact us.

ADA 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 In Focus does not serve as determination of the legal rights or responsibilities under the ADA for any individual, business or entity. Learn more about the Mid-Atlantic ADA Center.

Fall 2018, Volume 22, Number 3 (suitable for printing)

Fall 2018, Volume 22, Number 3, in large print (suitable for printing)

In this issue:

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Focal Point

Adjusting for Access:
Reasonable Modifications in Policies, Practices, and Procedures

One of the central requirements of both Title II and Title III of the ADA is the obligation to make “reasonable modifications in policies, practices, and procedures” to avoid unnecessary exclusion of individuals with disabilities.

The regulations for Title II, which cover state and local government programs, and Title III, which cover a variety of private businesses that offer goods and services to the public, both include similar language about this obligation.

It is important to understand the distinction between policies or practices that are themselves discriminatory, and policies which are neutral but which may need to be modified on a case-by-case basis.

Discriminatory policies are those that specifically exclude people because of disability and are often based on assumptions or generalizations.

For example: A recreation department or a fitness center prohibits all people with apparent mobility disabilities from participating in swimming classes. Individuals who use wheelchairs or other mobility devices, individuals missing limbs, and those who have noticeable limitations in walking or manual dexterity are not allowed to take any type or level of swimming class because management regards all such individuals as incapable of participating safely.

This policy, based on generalized fears about people with mobility disabilities, should simply be eliminated. If qualifications are needed for specific swimming classes or programs, they should be based on meaningful criteria and applied to everyone. For example, to take an advanced swimming class, all potential participants may need to demonstrate basic swimming abilities, or show evidence of passing a beginning class. Individuals with disabilities can be required to meet this standard, but cannot be subjected to additional or more stringent conditions.

Policies that are neutral, on the other hand, may need to be modified only on an individualized, as-needed basis in order to avoid unnecessarily denying opportunities to people with disabilities. The regulations for Title II and/or Title III address several specific examples:

  • Modifying “no pets” or “no animals” policies to allow individuals with disabilities who use service dogs, or in some cases miniature horses, to access public places;
  • Modifying “no vehicles,” “no coasting devices,” or “walk-only zone” policies to enable people with disabilities, in some circumstances, to use non-traditional mobility devices, such as golf carts or Segway® personal transporters;
  • Modify ticket sales and seating procedures for assigned-seat events in assembly areas such as arenas or performance venues, in order to help ensure that accessible seating locations are available for those who need them, and people can get information and purchase tickets for accessible seating the same ways tickets are purchased for other types of seating;
  • Modifying hotel reservation practices to ensure that individuals with disabilities can reserve available guest rooms with specific accessibility features, and be assured the specific rooms will be available upon arrival.

The fact that the regulations address these specific issues does not mean they are the only types of reasonable modifications that may be needed. There are countless examples of requests individuals with disabilities might make for adjustments to rules or changes in the way things are usually done, depending on the nature of programs or businesses.

These examples are based on technical assistance materials and regulatory analysis from the Department of Justice (DOJ):

  • A department store may need to modify a policy of only permitting one person at a time in a dressing room, if an individual with a disability needs assistance from a companion.
  • A town may need to grant a zoning variance to allow a business owner to install an entrance ramp that encroaches three feet into a normally required 12-foot set-back from the curb.
  • A county may need to help an individual with a mental disability understand and complete a complex, lengthy application for social services, even though applicants are typically expected to complete the application on their own.

Fundamental Alteration

Requests only need to be granted if they are disability-related and “reasonable.” Modifications do not need to be made if they would compromise legitimate safety rules or “fundamentally alter” the essential nature of services or programs.

The DOJ provides some examples of fundamental alterations:

  • A zoo would not need to permit a service dog in specific areas where the animals on display are the natural prey or natural predators of dogs, and the presence of a dog would cause the displayed animals to behave aggressively or become agitated. 
  • A museum would not be required to allow an individual who is blind to touch delicate works of art if the art would be damaged or its integrity threatened.

Often, finding the balance between reasonable modifications and fundamental alterations means understanding the nature of the services and programs in question. Again, these examples based on DOJ materials may be helpful:

  • A restaurant is not required to prepare special dishes for customers who have disabilities. This would be a fundamental alteration in the nature of the restaurant’s services. However, if it is easy to omit a sauce or ingredient from a dish that is listed on the menu, a customer can request that the item be omitted. This would not be considered a fundamental alteration.
  • A testing agency may be required to allow an individual to use a basic calculator during an exam even if test-takers are not typically allowed to do so. If the objective of the test is to measure one’s ability to solve algebra equations, and the ability to perform basic math computations (e.g., addition, subtraction, multiplication, and division), is secondary to the objective of the test, then a basic calculator may be an appropriate testing accommodation. If, however, the objective of the test is to measure the ability to perform math computations, then it likely would not be appropriate to permit the use of the calculator, as it could fundamentally alter the purpose of the test and the value of the test results.

Determining when, where, and how to implement appropriate modifications of policies and practices often necessitates a process of engagement and interaction between individuals with disabilities and the operators of programs and businesses.

Operators can get ahead of the curve by reviewing their policies, practices, and procedures to ensure they are meaningful and up-to-date. Training employees so they know and understand policies, as well as how to respond to requests from individuals with disabilities (which, in some cases, may mean contacting a supervisor or manager), is also important.

As always, contact us (800-949-4232) with your questions about the ADA. We’re here to help you understand your rights and responsibilities and find your answer.

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Zoom in on Training

TransCen and Mid-Atlantic ADA Center Webinars

Check our Trainings/Workshops pages for more details!

ADA National Network Online Learning

Check out the ADA National Network’s online learning programs, which include live webinars and archived sessions on a broad range of topics, including architectural design, accessible technology, arts and recreation, ADA legal developments, and much more. Upcoming sessions:

New Web Course on Disability Rights in Housing

Equal Housing Opportunity logo with "equal" sign inside outline of houseThe Fair Housing Act, Section 504, and the ADA web course covers the rights of people with disabilities in housing under the Fair Housing Act, Section 504 of the Rehabilitation Act, and the Americans with Disabilities Act.

The course addresses the definition of disability, the differences between reasonable accommodations and reasonable modifications in housing, the process for making disability-related requests, documentation of disability that a housing provider may require, undue burden, and fundamental alteration.

This free course, which is designed to take about 2 hours, was developed by the New England ADA Center; check out ADA Learning.

This is just a sample of the variety of training opportunities coming up on a local, regional, and national level. Visit our Trainings pages for a comprehensive listing!

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Close-Ups: What's New

Homelessness in America:
Focus on People with Disabilities
Experiencing Chronic Homelessness

This new brief from the U.S. Interagency Council on Homelessness (USICH) summarizes data and research about people with disabilities who experience chronic homelessness.

It is estimated that on any given day, nearly one-quarter of individuals experiencing homelessness are people with disabilities experiencing chronic homelessness – extended or repeated periods of homelessness.

Additionally, more than two-thirds of these chronically homeless individuals with disabilities live in unsheltered locations (sidewalks, parks, under bridges, in vehicles or abandoned buildings, etc.) rather than in shelters.

Data indicate that providing services such as permanent supportive housing (PSH) can be a cost-effective way of improving outcomes both for individuals and society, reducing reliance on costly emergency services, hospitalization, and institutionalization, including incarceration.

Although data continue to show high rates of disability among people receiving services aimed at reducing homelessness, there is much less data on people who experience homelessness but are not engaged in these programs. Still, various studies and statistics indicate a troubling cycle of risk, homelessness, poor health, victimization, and crisis for some individuals.

“People with mental illness and substance use disorders are over-represented among people who are in jails or prisons, and they face significant barriers to both employment and housing upon reentry. Some people who experience chronic homelessness seem to be caught in a revolving door of incarceration, crisis services, and life on the streets or in emergency shelters.”

The report outlines many gaps in our knowledge and understanding of the characteristics, demographics, service and shelter utilization, and needs of people who experience chronic homelessness, including families with children and unaccompanied youth. And unfortunately, following a significant decline between 2010 and 2016, chronic homelessness is again on the rise.

NDEAM: Celebrate
the Contributions of Workers with Disabilities

October is right around the corner! Remember to observe National Disability Employment Awareness Month (NDEAM). The Office of Disability Employment Policy (ODEP) makes it easy, providing ideas, resources, and sample materials for employers, educators, organizations, policymakers, and individuals to support and promote inclusive workplaces.

Your voice can make a difference, whether you get involved in educational or mentoring initiatives, organize or participate in a school, workplace, or community event, or post, tweet, and share the message that a diverse workforce is a strong workforce. America needs all its workers.

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Zoom in on Court Decisions and Settlements

Settlement Agreement: DOJ and Philadelphia Police Department

The U.S. Department of Justice (DOJ) and the Philadelphia Police Department (PPD) entered a settlement agreement designed to improve communications between the PPD and individuals who are deaf or hard of hearing.

DOJ initiated an investigation of the PPD following a complaint from a deaf individual who alleged the PPD failed to communicate effectively with him in the process of detainment and arrest. DOJ reviewed PPD’s policies, and interviewed representatives of PPD as well as a number of individuals who were involved in various types of interactions with the PPD.

DOJ issued a Letter of Findings (LOF) outlining their conclusions that the PPD engaged in practices that resulted in discrimination against individuals who are deaf or hard of hearing. The LOF detailed a number of instances where individuals who are deaf or hard of hearing were detained for hours or days with almost no meaningful communication and no means to make phone calls, and arraigned using remote video systems that were completely inaccessible to them. Requests from detainees, witnesses, and victims of crimes for assistance ranging from interpreter services to writing notes, were ignored or refused by officers.

The extensive settlement agreement establishes a number of measures to be taken. The PPD will:

  • Designate at least one employee to coordinate ADA compliance efforts and investigate complaints;
  • Post a specific notice in their facilities, including information about the availability of auxiliary aids and services such as interpreters, videophones, or TTYs;
  • Implement procedures to assess and track the need for auxiliary aids or services;
  • Obtain needed equipment or maintain contracts and resources to ensure the availability of such aids or services as TTYs, captioned telephones, videophones, assistive listening devices, or qualified interpreters when needed;
  • Implement a comprehensive training program for all personnel who interact with the public, addressing the ADA’s effective communication requirements;
  • Seek input from the public on disability-related issues.
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Cool Websites

Braille Nature Trails

This site is dedicated to the development of Braille nature trails, which include guide ropes and Braille signage to enable individuals with vision disabilities to utilize them more independently. This website was started by Evan Barnard, a Georgia student who got involved with repairing a Braille trail that had been vandalized. Evan has continued to work toward the development, maintenance, and promotion of Braille trails, and the website includes information about Braille trails located across the country.

Check out Evan’s Feeling the Trail video on YouTube.

National Braille Press

The National Braille Press promotes Braille literacy and offers a variety of programs and services, including the production of Braille material and tactile maps. The organization’s Education Services and Kids’ Programs support children, families, and educators, and the Center for Braille Innovation works to improve access to technology and digital information.

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