Disclaimer
The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.
The Next Episode
The next episode of the Demand Our Access podcast will take place on Saturday, March first. In that episode, I will continue our second look at Title II of the Americans with Disabilities Act (Title II).
If you have any questions or comments about this episode or Demand Our Access in General, I would love to hear from you. You can email me at Jonathan@DemandOurAccess.com. You can also complete the contact form on the Demand Our Access website.
Introduction
Title II primarily sets forth the requirements state and local governments are supposed to follow to ensure their activities, programs, and services are accessible to those of us with disabilities. Unfortunately, their isn’t a single state or local government complying with Title II. Even worse, most state and local governments are demonstrably out of compliance with Title II.
This deliberate noncompliance with Title II on the part of every state and local government adds to the discrimination faced by those of us with disabilities on a daily basis. Since we all need to interact with our state and local government, their lack of compliance with Title II causes us lots of stress and difficulty.
For those reasons, I chose Title II to be the first topic I discussed through the Demand Our Access podcast. Over the last roughly 2.5 years, I hope my ability to teach important legal concepts has improved. So, I thought it would be good if I revisited Title II now.
Much of the substance covered here will be very similar to what was covered more than two years ago. But I am, hopefully, presenting the information in a way that makes it easier to understand.
Episode Roadmap
I am covering these topics in this episode because they are the foundation of compliance under Title II. In the next episode, I will cover more of the information you will need to effectively request an accommodation or modification from your state or local government. If terms like accommodation and modification don’t mean anything to you now, they should when I finish our revisited two-part look at Title II.
Below are the eight topics I will cover in this episode:
- Code of Federal Regulations
- Defining a Public Entity
- Project Civic Access
- ADA coordinator
- Notice of rights
- Grievance procedure
- Self-evaluation
- Transition plan
Title II Revisited
Code of Federal Regulations
- Laws don’t often contain all their legal requirements.
- Congress regularly directs federal agencies to develop or promulgate what the law will require.
- Under the ADA, several federal agencies have responsibility for developing guidance as to what it means to comply with the ADA.
- When an agency has responsibility for clarifying what compliance with section(s) of the ADA means, they have enforcement power over those section(s).
- The Department of Justice (DOJ) has primary responsibility for establishing what guidelines for compliance under title II.
- DOJ also has primary enforcement power over Title II.
- When a federal agency establishes what constitutes compliance, those requirements are published in the Code of Federal regulations.
- When I cite to a section of law (either during the episodes or on the website) I will almost always be citing to the Code of Federal Regulations.
- Often, the Code of Federal Regulations is referred to as C.F.R.
- When I refer to a section of C.F.R, I’m referring to a section in the Code of Federal Regulations.
For the rest of this episode, I’m not going to mention any section in the Code of Federal Regulations. I’m not mentioning specific sections of the Code of Federal Regulations here, because I have realized mentioning the citations is very distracting for listeners.
Even though I won’t mention the citations to the Code of Federal Regulations, they will be provided when the text of this episode and this accompanying audio file are posted to the Demand Our Access website as a podcast episode.
Defining a Public Entity
- A public entity is defined in 28 C.F.R. § 34.104.
- Section 35.104 is the list of definitions under the ADA.
- The definition of public entity has three parts:
- any state or local government
- any department, special purpose district, or instrumentality of state, states, or local government
- the National Railroad Passenger Corporation and other commuter authorities
- All public entities with at least 50 employees should appoint their own ADA coordinator and have their own grievance procedure.
- Most local governments, if they have an ADA coordinator at all, do not have one in every agency or department.
Project Civic Access
- Project Civic Access is the primary way the Department of Justice (DOJ) enforces Title II.
- It has conducted audits of communities in all 50 states, Washington, DC, and Puerto Rico.
- It has done more than 200 audits in total.
- The agreements are posted online to help communities come into compliance with the ADA.
- The settlement between DOJ and the City and County of Denver, Colorado is representative of what is typically covered.
- The settlement includes:
- notice
- grievance procedure
- ADA coordinator
- physical accessibility of facilities
- accessible web content
- emergency preparedness
If none of the concepts mentioned in the Denver settlement make sense to you, I hope you will have a better understanding of them when I finish these two episodes.
While Project Civic Access, especially now, may not do anything to hold state and local governments accountable, I believe it’s important to understand what DOJ has already established as the issues it’s most interested in state or local governments meeting. Even if DOJ won’t help you now, the language in Project Civic Access settlements can assist you when advocating with your state and local government.
ADA Coordinator
Information about the requirements for an ADA coordinator, to provide public notice of rights, and grievance procedures can be found in Chapter Two of DOJ’s Title II Tool Kit.
- The requirement for an ADA coordinator is established in 28 C.F.R. § 35.107(a).
- Public entities with at least 50 employees must designate a “responsible employee”.
- Most people refer to the responsible employee as an ADA coordinator.
- The ADA coordinator is supposed to investigate and resolve complaints filed under Title II and ensure compliance with Title II.
- The law does not specifically list any qualifications an ADA coordinator must have.
- Every public entity is required to notify the public of their ADA coordinator and provide that person’s contact information.
One critical concept to remember about the requirement for all public entities to have an ADA coordinator is that a public entity is defined, in part, as the agencies, departments, and instrumentalities of a state or local government. If a state or local government took its compliance with Title II seriously, all of its agencies, departments, and instrumentalities with at least 50 employees would designate a qualified ADA coordinator.
Sadly, most state and local governments, if they designate anyone as the ADA coordinator, they only designate one person to be the ADA coordinator for the whole state or local government.
Notice of Rights
- Notice of rights is established in 28 C.F.R. § 35.106.
- The notice requirement applies to all public entities regardless of number of employees
- The notice should include the following:
- employment
- effective communication
- reasonable modifications
- no surcharges
- filing complaints
- The notice Should be published in all facilities, on the website, and included in event notices.
- The notice must be available in alternative formats
The notice of rights, when offered, can be an important step to advocating for greater access. This is because a proper notice of rights will help you understand what your rights are and how your state or local government hopes to ensure it follows the law and effectively accommodates you.
Unfortunately, many communities don’t publish a notice of rights. Others publish a combined notice of rights that generically states the state or local government will comply with several civil rights laws, but provides little or no specifics about compliance under any of those civil rights laws. Other state or local governments publish a notice of rights and then do little to ensure it’s followed.
No matter what, looking for your state or local governments notice of rights is a good place to start. If they don’t have one, or if it lacks specifics, you have issues to raise at the beginning of your advocacy efforts.
Grievance Procedure
- The grievance procedure requirement is established in 28 C.F.R. § 35.107(b).
- Every public entity with at least 50 employees is required to adopt and publish a grievance procedure.
- The grievance procedure is to allow for the “prompt and equitable” resolution of complaints filed under Title II.
- The DOJ sample grievance procedure calls for the following:
- the complaint filed preferably in writing
- date of and description of the problem
- should be submitted by the grievant or their designee within 60 days of the discrimination
- Meeting within 15 days of complaint being received
- Offer an appeal process
- All correspondence from the state or local government to you about your complaint are to be provided in accessible (alternative formats)
One compliance mistake almost all state and local governments make is their failure to ensure every agency, department, or instrumentality meeting the definition of a public entity has its own grievance procedure. Since many public entities also don’t have their own ADA coordinator, the responsibility for investigating and resolving complaints for an entire state or local government usually falls on one person.
One way we could raise the issue of noncompliance with Title II on the part of our state and local governments would be to figure out if they have a grievance procedure. If they only have one for the entire state or local government, filing a number of complaints under their grievance procedure would highlight the insufficiency of their efforts to comply with title II.
Filing with the state or local government directly won’t result in you collecting damages, but it should result in them better accommodating you. If they do it correctly, it should also result in them making changes so they better follow the law.
Self-evaluation
The self-evaluation is an examination of a public entity’s activities, programs, and services for accessibility to people with disabilities.
- The self-evaluation requirement is established in 28 C.F.R. § 35.105.
- The Deadline for completion of self-evaluations on the part of state and local governments was January 26, 1993.
- It is required of all Public entities regardless of number of employees.
- People with disabilities must be given a chance to comment.
- If there are more than 50 employees, the self-evaluation must be available for public inspection for three years.
- The documentation made available to the public is to include:
- list of people consulted
- facilities inspected
- description of completed modifications
- If a Self-evaluation was completed under Section 504 of the Rehabilitation Act of 1973, it is sufficient.
- There is no requirement for updating the self-evaluation.
Transition Plan
The transition plan is a public entities schedule to remove physical barriers that must be removed to achieve programmatic access. .
- The transition plan is established in 28 C.F.R. § 35.150(d).
- Public entities with 50 or more employees must complete a transition plan.
- Transition plans were to be completed by July 26, 1992.
- All barriers were to be removed by July 26, 1995.
- A transition plan should do the following:
- identify physical barriers
- Describe how barriers will be removed
- Set forth a schedule of barrier removal
- A transition plan should name the person in charge of compliance with the transition plan.
To my knowledge, there isn’t a single state or local government that has removed all physical barriers to access. Most of them haven’t completed their transition plan. Even when a state or local government has completed their transition plan, it’s very unlikely they are constantly checking to ensure new physical barriers to access haven’t been created since their facilities were studied for accessibility as a part of the transition plan process.
Advocating Under Title II
In case you’re interested in advocating for greater access with your state and/or local government, check out the episode called Advocating for Our Rights Under title II of the ADA. In that episode, I walk through specific steps you can take when advocating under Title II.
Conclusion
This completes our revisited look at basics under Title II. I will be back on March first to continue our look at Title II.
Thank you for listening to the Demand Our Access podcast. I very much appreciate your support.
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