Title II: Defining a Compliance Process

Title II of the ADA applies to State and local governments, or "public entities". This part of the Act prohibits discrimination against people with disabilities in all programs, activities, and services of public entities. The ADA outlines certain "administrative requirements" for Title II entities which actually provide a sound framework for Title II compliance which is equally effective for the private sector.

Title II relationship to other laws

Section 504 of the Rehabilitation Act of 1973, as amended, prohibited discrimination on the basis of disability for any program or activity of state and local government entities receiving federal funds. Title II of the ADA extends this coverage to all state and local government entities regardless of whether they receive federal funding. The requirements of Title II and Section 504 are very similar. Other laws and regulations mandating accessible environments and programs include the American National Standards Institute ANSI A 117.1 standard, the Architectural Barriers Act of 1968, the Uniform Federal Accessibility Standards (UFAS), and the Education of All Handicapped Children Act of 1975. The ADA does not supersede or preempt state or local laws that offer equivalent or greater protections.

The components of Title II

Title II is divided into seven Subparts: (A) general, (B) general requirements, (C) employment, (D) program accessibility, (E) communications, (F) compliance procedures, and (G) designated agencies.

Subpart A outlines the law's purpose and provides background information. It also states the administrative requirements that public entities conduct a self-evaluation to determine whether they are in compliance, provide notice regarding the rights and protections of the Act, designate a coordinator, and establish a grievance procedure. This portion of the regulation is significant in evaluating compliance with Title II of the ADA.

Subpart B addresses the general prohibitions against discrimination. Most specifically, no qualified individual with a disability may be excluded from participation in, or denied access to, programs or activities; denied benefits or services; or be subjected to discrimination by any public entity.

Subpart C references the employment provisions of Title I, which cover all public entities. The employment provisions state that an employer cannot discriminate against qualified individuals with disabilities in employment practices and policies and covers all aspects of employment.

Subpart D requires that public entities ensure all programs and activities are accessible to and usable by individuals who have disabilities. This subpart explains that a public entity does not necessarily have to make each and every facility accessible as long as all programs are accessible. Facility transition plan requirements are outlined in this section.

Subpart E, communications, requires public entities to ensure communications with applicants, participants, and members of the general public who have disabilities that are as effective as communications with others. Public entities are responsible for furnishing auxiliary aids and services and for providing text telephones, telephone emergency services, and information and signage.

Subpart F establishes the compliance process and administrative procedures for enforcement of Title II. The process for filing complaints and the remedies available in the event that a public entity is found to not be in compliance are presented. The specific process for employment-related complaints is outlined.

The final Subpart G, designates the federal agencies responsible for investigation of Title II complaints. There are eight federal agencies with enforcement responsibilities: The Department of Agriculture, Department of Education, Department of Health and Human Services, Department of Housing and Urban Development, Department of Interior, Department of Justice, Department of Labor, and the Department of Transportation. If two or more agencies appear to have responsibility over a complaint, the Assistant Attorney General will determine which one will investigate the complaint. Complaints related to employment may be referred to the Equal Employment Opportunity Commission.

The compliance planning process

The final rule outlines the administrative requirements which apply to Title II entities. The following steps are referenced from the ADA Title II Action Guide and is extremely helpful in examining existing programs and planning for compliance.

1) Designate a responsible employee.

Public entities with fifty or more employees must designate at least one employee to coordinate ADA compliance [28 CFR § 35.107(a)]. This person is referred to as the "responsible employee" or employees; many entities use the term, "ADA Coordinator." Any public organization, regardless of size, will find it helpful to designate a single person with overall responsibility for coordinating all compliance activities. If a public entity has a Section 504 compliance coordinator; this can be the same person as the ADA coordinator. The ADA coordinator must have authority, knowledge of the law, and a strong commitment in order to effectively administer the compliance activities. The public entity must provide the ADA coordinator's name, office address, and telephone number to all interested individuals [28 CFR § 35.107(a)]. The responsible employee was to have been designated by January 26, 1992.

2) Provide notice of ADA requirements.

All public entities, regardless of size, must provide information about the rights and protections of Title II to applicants, participants, beneficiaries, employees, and other interested persons. Information about how the requirements apply to the entity's particular programs, services, and activities is to be included [28 CFR § 35,106]. The notice must include the identification of the employee serving as the ADA coordinator, if the entity is covered under Section 504 and has 15 or more employees. The public entity must provide this information on an ongoing basis [28 CFR § 104.8(a)]. Methods for providing this notice include publishing the information in handbooks, manuals, and pamphlets, displaying informative posters in public places, and broadcasting information on television and radio. In order to meet the requirements for effective communication, the notice must be in clear, straightforward language and in alternative formats that are accessible to individuals with various disabilities. It should be noted that while the ADA coordinator may assume responsibility for determining the most effective methods for providing this notice as required, it is ultimately the responsibility of the head or the organization. Notice was to have been provided by January 26, 1992.

3) Establish a grievance procedure.

Public entities must adopt and publish grievance procedures providing for prompt and equitable resolution of complaints [28 CFR § 35.107(b)]. This requirement, which has been in effect since January 26, 1992, provides for a timely resolution of all problems or conflicts related to ADA compliance before they escalate to the point of necessitating litigation and/or the federal complaint process. This grievance procedure applies to employees and job applicants and any other individual who feels they have been discriminated against on the basis of disability. The grievance procedure was to have been established by January 26, 1992.

4) Conduct a self-evaluation.

All public entities, regardless of size, must conduct a self-evaluation [28 CFR § 35.105(a)]. This is a comprehensive review of the entity's current policies and practices, including employment and communications. The entity must identify any policies or practices that do not comply with Title II requirements and modify these non-compliant policies and practices to bring them into compliance. The review must include both formal written policies and procedures and actual operating practices [28 CFR § 35.105(a)]. The organization must analyze the impact of policies and procedures on people with disabilities. The Title II self-evaluation was to have been completed by January 26, 1993 [28 CFR § 35.105(a)]. Public entities most provide an opportunity for individuals to submit comments pertaining to the self-evaluation effort [28 CFR § 35.105(b)]. The self-evaluation must be kept on file and available for public inspection for at least three years from the date of completion [28 CFR § 35.105(c)]. Any requested information must be promptly produced and in a format which is easily used by the individual making the request. The individuals who participated in the self-evaluation, the areas examined, the problems which were discovered, and the changes made as a result, must be kept on record [28 CFR § 35.105(c)]. Organizations that receive federal funding and have previously conducted a Section 504 self-evaluation are required to review only the programs established after the Section 504 self-evaluation was completed and any new or modified policies or practices which were not included in the Section 504 self-evaluation [28 CFR § 35.105(c)]. Public entities are required to meet both the requirements and deadlines for Section 504 and ADA self-evaluation. Completing the ADA self-evaluation in its entirety may be the wisest choice for numerous reasons.

5) Develop a transition plan.

When structural modifications to facilities are necessary in order to make a program, service, or activity accessible to people with disabilities, public entities which employ 50 or more are required to develop a facility transition plan [28 CFR § 35.150(d)(1)]. The transition plan must include 1) the physical barriers which limit access to and use of the programs, services, and activities for people with disabilities, including communications features which are structural in nature; 2) a detailed description of how the entity plans to make the facilities accessible; 3) the schedule for barrier removal; 4) a yearly schedule if the transition plan is more than one year long; and 5) the name of the individual who is responsible for implementing the transition plan [28 CFR § 35.150(d)(3)]. The ADA Title II transition plan was to have been completed no later than July 26, 1992 [28 CFR 35.150(d)(1)]. Any required structural changes were to have been completed no later than January 26, 1995 [28 CFR § 35.159(c)], but as expeditiously as possible.

Program and facility accessibility

Frequently, the result of conducting a self-evaluation is the discovery that modifications to facilities will be required in order to provide access to the entity's programs, services, and activities. Both Title II of the ADA and Section 504 prohibit public entities from denying an equal opportunity to participate because existing facilities are inaccessible or not usable by people with disabilities [28 CFR § 35.149 and 34 CFR § 104.21]. Each program, when viewed in its entirely, is to be readily accessible to and usable by individuals with disabilities [29 CFR § 35.150(a) and 34 CFR § 104.22(a)].

An existing facility is one that was already constructed, or for which ground-breaking had begun, prior to January 26, 1992, in accordance with Title II of the ADA. Access to programs, services, and activities in existing facilities is to be viewed programmatically and access to the actual structures is defined functionally. As long as each identified program, when viewed in its entirety, is accessible, it is not required that all existing facilities, nor every part of an existing facility, be made totally free of physical access barriers.

It should be noted that new or altered facilities must comply with the Standards for Accessible Design and be fully accessible and usable [28 CFR § 35.151 and 34 CFR § 104.23], rather than applying program access.

The Standards for Accessible Design (ADA Accessibility Guidelines) or the Uniform Federal Accessibility Standard (UFAS) are the architectural standards to be applied in facility compliance. Not all scoping and technical criteria must be strictly adhered to in existing facilities. However, it is useful to identify all architectural barriers and communications barriers which are structural in nature in existing facilities. An instrument such as the Access Board's Checklist is a good tool for evaluating existing conditions.

In removing access barriers, both structural and nonstructural methods can be utilized. However, when using nonstructural solutions, the public entity must be certain the result is not segregation of individuals with disabilities nor compromising their dignity and independence. Programs, services, and activities are to be offered in the most integrated setting possible [28 CFR § 35.150(b)(1) and 34 CFR § 104.22(b)]. If no nonstructural alternatives which meet these criteria can be implemented to achieve accessibility, then the entity must make the necessary structural changes [28 CFR § 35.150(b)(1) and 34 CFR § 104.22(b)]. All structural changes must conform fully to the Design Standards for new construction and alterations. Structural changes must address the needs of a variety of disabilities, not only mobility impairments; the full range of disabilities is to be considered when planning for compliance. Under Title II of the ADA, any needed structural changes were to have been made as soon as possible, but no later than January 26, 1995 [28 CFR § 35.150(c)].

Title II of the ADA does not require 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, any public entity attempting to justify non-compliance by referencing these exceptions must assume the burden of proof [28 CFR § 35.150(a)(3)]. All of the entity's resources available for use in the funding and operation of the service, program, or activity, will be considered in any decision relevant to undue burdens [28 CFR § 35.150(a)(3)]. The undue burden/fundamental alteration defense does not relieve public entities of their obligation to ensure that people with disabilities receive the programs, benefits, and services offered by the organization [28 CFR § 35.150(a)(3)(Preamble)].

The facility transition plan

"In the event that structural changes to facilities will be undertaken to achieve program accessibility, a public entity that employs 50 or more persons shall develop, within six months of January 26, 1992, a transition plan setting forth the steps necessary to complete such changes. A public entity shall provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the development of the transition plan by submitting comments. A copy of the transition plan shall be made available for public inspection." [238 CFR § 35.150(d)(1)].

Public entities must develop a transition plan which itemizes identified structural barriers to program access and states how they will be removed. Title II requires that the transition plan include 1) a list of the physical barriers that limit facility accessibility to programs, activities, and services; 2) a description of how the barriers will be removed; 3) the schedule of steps for achieving compliance; 4) the schedule for providing curb cuts if the entity has responsibilities for streets, roads, or walk-ways; and 5) the name of the responsible official [28 CFR § 35.150(d)(2) and (3)].

In addition to other requirements, Title II mandates that entities must maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities [28 CFR § 35.133(a)]. This includes such things as locked accessible doors or elevators, accessible routes which are obstructed by parked cars, furniture or other items, and compliant signage which is obscured from vision and touch.

The following is a process for preparing and conducting the facility access review, for analyzing the program access options, and for actually developing the facility transition plan.

Preparation:

• Select a coordinator and a subcommittee to review program and facility access.
  Generally, an organization will include on this committee capital planning staff, facilities and maintenance managers, employees and/or community members with disabilities, departmental representatives, architectural access consultants, and special events and activities staff.
• Orient and/or train the individuals involved with conducting the review.
  All individuals coordinating and conducting the review must be fully informed about the requirements in order to conduct data collection in a useful and consistent manner and to evaluate and apply the requirements.
• Ensure the participation of persons with disabilities.
  People who have various disabilities can lend important insight into key issues which are often not apparent to the non-disabled. They can help evaluate the impact and importance of various barriers and often can propose simple, cost-effective solutions. People with disabilities can help establish priorities and time frames for barrier removal.
• Conduct a review of programs.
  The goal of this review process is to ensure program accessibility. In order to consider such solutions as reassignment or relocation of programs, the committee must know the current building and location within the building of each program, the program scheduling requirements, and the program space requirements.
• Identify the spaces to be surveyed.
  All facilities that contain entity programs must be reviewed. This includes buildings owned or leased by the entity, as well as parks, outdoor areas, walkways, and any other facilities used in the operation of the programs.
• Choose a self-evaluation survey instrument.
  There are a number of good survey instruments (checklists) available, including an all-inclusive checklist prepared by the Access Board. It should be noted that the ADA Design Standards and the Facility Checklist are based upon adult anthropometrics; spaces which are used by children warrant special consideration.
• Establish a schedule for the facility review.
  Surveys should be conducted in a timely manner.
• Train the access review team.
  The review team should be knowledgeable regarding the accessibility requirements, as well as understanding the data collection instruments. It is especially important that data be collected accurately and the methods for recording be consistent.

Facilities Review:

• A complete, accurate survey of all potential architectural and communications barriers which are architectural in nature is necessary to identify those elements not in compliance.
• Use site and floor plans if they are available to record locations of both complying and non-complying elements. Use the checklist you have chosen to record data. Be accurate and consistent when measuring and recording.
• While surveying, think about each space from the perspective of people with physical, hearing, visual and cognitive disabilities.

Analysis:

• Identify nonstructural and structural solutions.
  After the facility access review has been conducted and barriers identified, the access committee should assess the findings to determine where physical obstacles create barriers to programmatic access. Where programs and facilities are inaccessible, potential structural and nonstructural solutions which effectively eliminate the identified barriers can be identified.
• Project long-term and short-term costs.
  Both the costs and the sources of funds should be considered. Solution options should be evaluated in terms of their relative cost and effectiveness in providing access. Criteria such as providing programs, services, and activities in integrated settings; the preferences of individuals who have disabilities; and capital planning information, should be considered.
• Document fundamental alteration/undue burden decisions.
  If there are any situations which warrant the fundamental alteration/undue burden claim, the justification must be documented.

Planning:

• Prepare a draft transition plan.
  Before completing the facility transition plan, a draft transition plan is to be prepared which includes all the required components, including a timetable for structural modifications.
• Solicit comments on the draft transition plan.
  Interested persons, including those with disabilities, must be given the opportunity to review and comment on the proposed plan.
• Adopt and implement final plan.
  Revisions should be made in response to comments and the final transition plan adopted. The official responsible for implementation must sign the final transition plan and it is to be implemented immediately.

Implementing changes

• Any policies or practices which are discovered to be discriminatory should be modified immediately. Often these changes require simple administrative actions which may need reinforcement through staff training. An example would be to allow service animals into an establishment when the practice had always been "no animals allowed".
• Move programs or events which are currently held in inaccessible locations to accessible locations upon request. For instance, if the Board meetings of a special district entity are held in an inaccessible second floor conference room, be ready to move the meeting if someone with a mobility impairment wishes to attend or is appointed to the Board.
• Provide auxiliary aids and services to assure effective communications. The entity must develop the capacity to provide a wide range of aids and services since what is effective may vary greatly depending on the individual. Examples are the use of sign language interpreters, providing documents in Braille, furnishing audio tapes, and providing large print documents.
• Remove barriers to program accessibility. Possible solutions include moving a program to an accessible location, bringing the program to the participant, using adaptive equipment, assigning support staff, or altering facilities.
• Plan any budget for any structural changes required to make facilities accessible. Prepare a schedule for barrier removal, including providing curb cuts. Examples might include restriping parking to provide accessible parking spaces, eliminating changes in level along the path of travel, installing ramps in place of stairs, widening doors, modifying restrooms, installing ADA-compliant signage, etc.

Additional Resources

ADA Title II Action Guide
Adaptive Environments Center
374 Congress Street, Suite 301
Boston, MA 02210
To order: 1-800-341-7874, ext. 353

Compliance with the Americans with Disabilities Act:
A Self-Evaluation Guide for Public Elementary and Secondary Schools
US Government Printing Office
Superintendent of Documents,
Mail Stop: SSOP
Washington, DC 20402-9328
ISBN 0-16-048098-1

Means ADA Compliance Pricing Guide
R.S. Means Company, Inc.
100 Construction Plaza
PO Box 800
Kingston, MA 02364-0800
(617) 585-7880

Practicing Universal Design
Van Nostrand Reinhold
115 Fifth Avenue, New York, NY 10003
ISBN 0-442-01376-0

Accessible Landscapes: Designing for Inclusion
Accessible Landscapes Project
Department of Plant Operations
1600 Holloway Avenue
San Francisco, CA 94231
(415) 338-1845

Signs and the ADA
Access Communications
15320 South Broadway
Gardena, CA 90248
(310) 323-5210

Sweet's Accessible Building Products Catalog File
Sweet's Group
1221 Avenue of the Americas
New York, NY 10020-1095
1-800-892-1165

Universal Access to Outdoor Recreation:
A Design Guide
MIG Communications
1802 Fifth Street
Berkeley, CA 84710
1-800-790-8444

Web sites:
www.access-by-design-com ~ has links to all government sites and other resources
http://www.usa.net/ada_infonet/ ~ Rocky Mountain ADA Technical Assistance Center
Standards for Accessible Design ~ http://www2.ncsu.edu/ncsu/design/sod4/sodpages/
researchoutreachextension/CFUDwww/index.html
Department of Justice ~ http://www.usdoj.gov/crt/ada/adahom1.htm
Equal Employment Opportunity Commission ~ http://www.eeoc.gov
Department. of Transportation ~ http://fta.dot.gov
Access Board ~ http://www.access-board.gov/
Department of Education ~ http://www.icdi.wvu.edu/tech/ada.htm
President's Committee on Employment of People with Disabilities ~ http://www.pcepd.gov
Job Accommodation Network ~ http://janweb.icdi.wvu.edu/english/homeus.htm
Federal Communications Commission ~ http