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You're listening to the Disability Law Lowdown, Show Number 6

Beth Case: Hello, and welcome to the Disability Law Lowdown podcast. No, I'm not Jacquie Brennan. I'm your guest host, Beth Case, from the Disability411 podcast. Here on the Disability Law Lowdown podcast, we're going to listen to Jana Copeland interview Pat Going about Title II of the Americans with Disabilities Act. Both Jana and PAt work for the Rocky Mountain ADA Center. So let's hear what they have to say.



Jana Copeland: Hi this is Jana Copeland, Deputy Director of the Rocky Mountain ADA Center out of Colorado Springs and I'm here today to chat a little bit with our director here at the project, Pat Going, about Title II basics or a little bit about responsibilities dealing with state and local governments. How are you doing today, Pat?

Pat Going: Well I'm doing well! Good morning.

Jana Copeland: As a way to kick off: What exactly is Title II?

Pat Going: Well Title II of the Americans with Disabilities Act for those that aren't real familiar with it relates to those entities that receive tax dollars. These typically are the state and local government, public schools, some municipalities like water districts, things of that nature.

Title II, as opposed to private entities which fall under Title III. So anybody that gets tax-supported funds is Title II.

Jana Copeland: And what exactly are the requirements under Title II of the ADA, Pat?

Pat Going: Well Title II, because government -- local government and state government -- is involved, has a bit a bit more formality, Jana, that really requires designation of an ADA Coordinator -- more paperwork would be another way to look at it -- and it is something that all Title II entities should take quite seriously in having that structure in place with an appointed coordinator and then really complying with the ADA.

Jana Copeland: And I've heard a little bit about a project "Civic Access" that deals with state and local governments. Can you tell me a little bit about that initiative?

Pat Going: This is something that the US Department of Justice has initiated. It's been in progress for, oh, I guess three years now, and this is one of the proactive enforcement actions that Department of Justice has taken where they go out and visit counties or cities, I like to think of it almost like a tax audit, that they would arrive at city hall and ask to see the ADA coordinator and also the self-evaluation and transition plan. It is something that local governments need to be prepared for and if they're not organized, it can create really quite a bit of catch-up for them to comply with the Department of Justice. On the Department of Justice's web site, Jana, there's a real good explanation of Project Civic Access and the DOJ site is linked from ada.gov.

So I would encourage any of our listeners to take a look at that and get more familiar with who has been involved in some of the settlement agreements.

Jana Copeland: So, when folks from Department of Justice show up and come and do a Project Civic Access visit, Pat, what exactly are they looking for?

Pat Going: Well, they are obviously looking for compliance as specified in the Americans With Disabilities Act and I have mentioned the formality of really having a person who is responsible in place, a grievance procedure that has been published, an action plan where they have identified where barriers are and they've done this self-evaluation plan which is looking at the programs that these state and local governments offer to insure that everybody who is eligible has access to those programs, including people with disabilities and they would also look at any -- almost like a punch-list from construction -- if remedies are needed in the physical built environment, that there is some sort of program to get those things fixed. Often what happens, Jana, is there's a settlement agreement that really lays out timelines so all of these things are remedied.

Jana Copeland: Okay, well, you raised an issue about the built environment, Pat. Does Title II of the Americans With Disabilities Act require that state and local governments retrofit all of their existing buildings or how exactly do the architectural requirements work for Title II entities?

Pat Going: It is a little bit unique and boy, good question! Thank you. First of all, the easy part of the answer is: all new construction needs to be built to meet the standards for accessible design, also known as ADAAG. Where it becomes a little trickier is for existing facilties. The ADA says it is not necessarily required that every existing building be retrofitted but on the contrary, the state and local government needs to insure every program is accessible.

So, let's take public schools, which we discussed are covered under the Title II. In a metropolitan area, not every grade school might need to be accessible but at least several would be so that if there was a student who did have a disability and a particular grade school was not accessible, there would be a nearby one that they could attend. So its this "program accessibility" requirement as it relates to existing facilities. If indeed it is determined that the only way to make a program accessible is to retrofit the physical facility, then that Title II entity does need to do that.

Jana Copeland: So, you actually mentioned public schools a couple of times now, Pat. I have a quick question for you: How exactly does Title II of the ADA interact with the Rehabilitation Act of 1973, in Section 504?

Pat Going: Well, public schools need to be aware of both. As we know, the Rehab Act actually was passed in 1973 and requires any entity that is the recipient of federal funds to make sure that their programs are accessible to everybody, including people with disabilities, so that has generated since 1973. In many ways, the ADA overlays and reinforces the Rehab Act and requires the programs to be accessible. Most public schools through a variety of programs do receive federal funds. We like to point towards the Title II requirements just because it is more explicit and there is more definitive guidance.

Jana Copeland: That makes sense. If, for some reason, a Title II entity is required to provide services or interpreter or some other form of effective communication, Pat, are they allowed to pass those costs associated with those on to the individual with a disability?

Pat Going: The short answer is no, and we like to identify that particular situation as a surcharge. A person with a disability may not be required to pick up the cost to provide an auxiliary aid or some sort of modification in the program that the Title II entity is required to provide. So, a real very clear point is that surcharges may not be passed back onto the person with a disability.

Jana Copeland: Okay, another term that gets thrown around a little bit -- I know it is sometimes confused with "accommodations" under the employment provisions of the ADA -- are "reasonable modifications". Can you take a minute to explain that concept to us?

Pat Going: All parts of the ADA, when we really get into the details, will have a ceiling -- either an undue hardship under the employment side of things or an undue burden as it relates to providing program access to all. So, when we look at what is required to provide that program, you see this term "reasonable modification of policy" and what that is saying is that Title II entity will need to make a good faith effort and do as much as it can but if it goes beyond a "reasonable modification", meaning literally too expensive -- they just literally do not have the financial resources -- or there is a fundamental alteration of what that program is, an administrative upheaval -- then it is no longer a reasonable modification. So that term is really saying the ADA, like all parts, is "this needs to work for everyone."

Jana Copeland: On that note, I know that here in our region and I know across the country, a lot of our communities deal with accessibility related to historic buildings, particularly in older communities that have buildings that might not be seen as completely accessible or compliant with the ADA, Pat. How exactly can Title II entities weigh or balance out historic preservation and access for folks in the community who have disabilities?

Pat Going: This is another situation that the ADA co-exists with other laws and other guidance that really is required of our state and local governments and historic buildings, there's some good resources on that, Jana, that goes into a little more detail but in essence it says that we need to respect our heritage, we need to respect those unique features in our historic buildings so that we don't destroy these things in the process of making something program accessible. However, if indeed an historic building is doing an alteration or adding a brand new restroom inside, those instances where they have the opportunity to meet the new building standards, then they should.

So I mentioned a good faith effort and common sense earlier, so with an historic building, if indeed there are too many stairs to the front door and there's no way to change that out, then you would hope that other entrances would be looked at or possibly, if indeed it is not accessible to someone with a mobility impairment, that other ways to provide the information at that facility could be delivered like a video tape or something on the web site that somebody could have access to.

Jana Copeland: Sure, there's lots of technologies out there. For folks that are out there who are with Title II entities, Pat, can you suggest maybe some action steps or some actions that they can take to start to get into compliance with the ADA?

Pat Going: Well, to keep it somewhat straightforward, there are actually five action steps and we'll just hit these real quickly, Jana that somebody should go through and then I'd like to point out some of the really good resources that are available for free where somebody can take their time and go through all of this and also feel very comfortable in contacting their local ADA Center at our 800 number: 1-800-949-4232, which is voice as well as TTY.

So the five action steps will be:

Step 1: Designate a responsible employee, somebody who really takes the task on of learning the ADA and being the point person.

Step 2: Providing notice in a public way of the ADA requirements that this particular Title II entity is accepting and embarking on to comply with.

Step 3 is a grievance procedure that oftentimes is a way for someone within the area if indeed they had a question or they feel like they

were being discriminated against, that there was a way to communicate that concern.

Step 4 is to conduct a self-evaluation, and

Step 5 is, from the self-evaluation, develop a transition plan.

The Department of Justice at ADA.GOV has common questions about Title II of the ADA, which is quite good, including also Title II highlights that might be really catching those high points that would remind somebody of what they need to be doing. Our colleagues out of Region One created the Title II action guide. It has quite a few checklists, and really a way to, in a sequential method, to evaluate programs and develop that transition plan and there there is also some more specific guidance for small towns which sometimes don't have near the personnel or financial budget to go into some of the detail that the larger state and local governments are required to do.

Jana Copeland: Pat, I think I also heard that Department of Justice has also launched a relatively new online course that deals with Title II access and a toolkit that they've developed, is that true?

Pat Going: That is very true and quite a timely question. I believe this came out oh just a month or two ago and it is a self-paced course. I've had an opportunity to look at it in a cursory way and it is really well done. I'm so glad you reminded all our listeners of that resource.

Jana Copeland: Yes but that one, actually, the web course is actually from our colleagues out of Region Four in the Southeast DBTAC that put that together and they can actually find that information at adacourse.org and be able to get registered and signed up for the Title II webcourse and then of course the toolkit that the Department of Justice has put together is available at ADA.GOV as well. Do you have any other closing comments, Pat, before we wrap up today?

Pat Going: Well, I just want to remind anybody that's dealing with Title II entities, either as a citizen or actually as part of the organization, that you do not need to start from scratch. There's just so much good guidance, do call upon one of the ten ADA Centers; they are there to help in a very user-friendly way and I think that everyone will find that when they get into it, this is just such good common sense.

It also relates to our senior population and serving those folks that are taking advantage of all of our state and local governments also. This also has a little bit of influence too, Jana, on voting and it is going to be such a major subject for us all as the upcoming elections are in place and all of us want to go and cast our vote, so all of these things are very related.

Jana Copeland: Absolutely! Well Pat, thank you very much for your time today and giving us a little bit of a taste of the requirements of the Title II of the Americans With Disabilities Act. As you said, if anyone has any other questions or needs additional clarification or information, they can get this information at their local ADA Center at 1-800-949-4232 and that's both voice and TTY. Thanks Pat and to all, have a great day!

Pat Going: Great, thank you Jana!



Beth: I hope you all found that informative. The Americans with Disabilities Act can be a little bit confusing, so if you have any questions about the Americans with Disabilities Act or any other disability related laws, you can contact the ADA Centers at 1-800-949-4232. And you can listen to all the past episodes of the Disability Law Lowdown and read the transcripts at dll.ada-podcast.com. The Disability Law Lowdown would like to thank their sponsor, the National Institute of Disability Research and Rehabilitation. And I would like to thank the Disability Law Lowdown for letting me guest host. If you would like to listen to another disabilty-related podcast, be sure and visit my show at disability411.jinkle.com. Thanks again. And you've been listening to the Disability Law Lowdown.





The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.