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11/1/2019
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Program Accessibility and Reasonable Policy Modifications
Title II: Americans with Disabilities Act
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Your Presenters
• Nancy Greene• Title II ADA Compliance Manager
(Retired)Montgomery County, [email protected]
• Nancy Horton• Project Specialist
Mid-Atlantic ADA [email protected]
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Our Agenda
• Overview• Title II
• Program accessibility
• Reasonable modifications of policies, practices, and procedures
• Questions and discussion
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Title IIState and Local Governments
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The Basics
• Title II covers all programs, services, and activities of state and local governments (public entities)
• All public entities must conduct self-evaluation• Review programs and policies to ensure non-discrimination
• Public entities with 50 or more employees must • Designate at least one employee responsible for ADA compliance
• Establish grievance procedure
• Develop transition plan to address structural changes to facilities if needed to achieve access to programs and activities
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Contracts
• Public entities are responsible for any programs, services, or activities they conduct or provide through contracts or other arrangements• “ … activities of public entities are covered, even if they are carried out
by contractors” (ADA Title II regulations, 1991 Preamble and Section-by-Section Analysis)
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Requirements
• Non-discrimination
• Reasonable modifications of policies, practices, procedures
• Program accessibility
• Auxiliary aids or services for effective communication with people with hearing, vision, speech disabilities
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Inquiries
• Ability to ask about disability (nature, cause, extent, etc.), or for documentation of disability is very limited; only when necessary• Examples
• Service animal: may ask• If animal is needed because of disability (but not what the disability is), and
• What work or task animal is trained to do
• Academic testing accommodations: may require tailored documentation of nature of disability/limitations and need for accommodation
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General Limitations
• Public entities do not have to take actions that …• Fundamentally alter the essential nature of programs
• Impose undue financial and administrative burdens• These decisions are made by the head of the public entity, considering all
resources available for the program, service, or activity, and accompanied by a written statement of rationale• NEXT: consider alternatives that do not cause fundamental alterations or
undue burdens
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Eligibility Criteria and Safety Rules
• Must be legitimate, consistently applied, and necessary to program• Must not be based on speculation, stereotypes,
or generalizations about people with disabilities
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Direct Threat
• Public entity does not have to permit an individual with a disability to pose a direct threat to the health or safety of others• Use reasonable judgment, current medical knowledge, best available
objective evidence to make an individualized assessment• Nature, duration, and severity of the risk
• Probability of harm
• Whether reasonable policy modifications or provision of auxiliary aids or services will mitigate risk
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Surcharges
• Individuals with disabilities, or groups of people with disabilities, cannot be charged fees to cover costs of ADA compliance
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Program AccessibilityAccess to Programs, Services, and ActivitiesConducted in Existing Facilities
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Ensuring Participation
• Public entities must make sure people with disabilities can participate in activities and receive services offered in older, inaccessible buildings and facilities
• Programs must be accessible when “viewed in their entirety”• Not every old, inaccessible facility needs
to be made accessible, but people with disabilities must have equal opportunities and be as integrated as possible
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Leased Spaces
• Programs and activities conducted in leased facilities are subject to the same requirements as those conducted in the public entity’s own facilities• Public entities are not necessarily required to lease fully accessible
facilities, or to improve structural access in leased facilities• Focus on accessibility of programs, services, and activities
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Program Accessibility: Options
• Options may include• Using equipment• Providing assistance• Relocating activities to comparable,
accessible facilities• Making home visits, providing information
or services via mail, online, etc.• Altering existing facilities or building new
ones
• Suitable methods will depend on the nature of activities and the types of facilities needed to conduct them
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Individual Assistance vs. Personal Assistance
• Public agencies generally do not have to provide personal devices or assistance, for example …• Prescription eyeglasses, hearing aids
• Assistance with eating, dressing, toileting
• … unless personal devices or assistance are routinely provided (hospital, day care program for infants or toddlers, etc.)
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Benefits of Improving Existing Facilities
• More convenient for the public and agency staff• Reduces need for scheduling adjustments or relocation of activities
• Reduces need for alternatives such as providing assistance or making home visits
• Enhances independence for people with disabilities
• Enhances integration
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Historic PlacesProviding Program Access and Preserving Our Past
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Which Statement is True?
1. Historic properties are those built before 1990.
2. Historic properties are those built more than 100 years ago.
3. Historic places are exempt from the ADA.
4. Historic places can be structures, districts, or sites.
5. Historic properties can never be used to house state or local government services (e.g., tax office); historic properties can only be used for historic preservation programs (e.g., living history museum).
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Historic Property
• “A building or facility that is listed in or eligible for listing in the National Register of Historic Places, or designated as historic under an appropriate state or local law” (ADA Standards)
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Historic Preservation Programs
• “ … programs conducted by a public entity that have preservation of historic properties as a primary purpose” (§ 35.104)• Priority: physical access
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Historic Significance
• Threatening or destroying historic significance of historic property not required• Alterations
• Program accessibility
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Scenario: Children’s Library
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Creative Solution: Coming from Another Angle
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Creative Solution: New Ramp, New Door
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Reasonable ModificationsPolicies, Practices, and Procedures
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Individualized Modifications
• Many modifications will need to be made on an individualized basis, considering …• Individual’s disability-related needs
• Context: program or activity (fundamental nature/purpose of program or activity, eligibility criteria, etc.)
• Example: accommodations for tests (academic, licenses, etc.)
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Generalized Policy Modification
• Some “modifications” should be ingrained in programs
• Example: Emergency planning should routinely take into account the needs of individuals with disabilities (e.g., transportation needs of individuals who rely on public transit/paratransit for evacuation)
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The Combo
• Some modifications may be successfully implemented with a combination of established parameters and individualization
• Example: OPDMDs• Program or facility may establish parameters of when, where, how, and
what types of OPDMDs may be used by individuals with disabilities (days or times, environmental conditions, off-limit areas, speed limits, power source [gas-powered vs. electric], etc.)
• People may still be asked individually for credible assurance that the OPDMD is needed because of disability
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Addressing Requests: Start the Process
• Communication and collaboration among parties (requestor, program operators and staff, ADA Coordinator, other administrators as needed)• Respect confidential information (medical/disability); “need to know”
• Understand request, disability-related needs of individual, barriers to participation
• Understand program (fundamental nature, eligibility requirements, safety issues, etc.)• Ensure consideration of legitimate factors only; address any concerns
based on stereotypes, assumptions, paternalistic attitudes, etc.
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Addressing Requests: Decisions, Implementation, Follow-Up
Grant Request
• Inform requestor and program staff of decision and any needed steps for implementation• Make sure all parties understand
they may reach out for additional help if implementation does not go well or they discover additional needs/concerns
Deny Request
• Inform requestor and provide rationale for decision• Inform requestor of options for
appeal/grievance
• If possible, offer alternatives to the initial request that may enable participation
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Scenario: Summer Camp• A city offers summer camps for children. One is a therapeutic program
designed for children with disabilities. Staff, including nurses, provide personal assistance (e.g., help with eating, toileting, and administering medications).
• A parent wants her daughter, Caley, who has a seizure disorder, in the regular (non-therapeutic) program, and requests that staff learn how to administer diazepam (Diastat) in case Caley experiences a “breakthrough” seizure. Written policy for regular camps is that staff will not administer any medication except an EpiPen in an emergency.
• The parent feels that under the ADA, an exception to the medication policy should be made for Diastat, since it is also used only in an emergency. The camp director has heard that Diastat is administered rectally, and feels therapeutic camp is the appropriate placement for Caley.
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Thanks for Joining Us!
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TransCen’s Mid-Atlantic ADA Center(DC, DE, MD, PA, VA, WV)[email protected]
Member of ADA National Network (www.ADAta.org), funded by National Institute on Disability, Independent Living, and Rehabilitation Research
