ADA: What You Should Be Doing
(from Maine Townsman, July 1992)
by Geoff Herman

On July 26,1990, President Bush signed into law the Americans With Disabilities Act (ADA), which is now found at 42 USC 12101 et seq. The ADA is a comprehensive piece of federal civil rights legislation that generally prohibits discrimination against individuals with disabilities.

The ADA is broken down into 5 titles: Title I covers employment discrimination; Title II deals with discrimination in the area of public services, including public transportation; Title III governs private sector "public accommodations" discrimination; Title IV is concerned with discrimination in the field of telecommunications; and Title V undertakes the clarification of such diverse miscellaneous matters as how the ADA will be applied in federal wilderness areas or with regard to transvestites.

Title II of ADA—which deals with discrimination in the provision of public services—is itself broken down into two parts: Part A deals with public services discrimination generally, and Part B is concerned with public transportation discrimination. The focus of this article is on Title II, Part A of ADA; specifically, what all Maine municipalities should be doing—and by when—with regard to structural accessibility to public services. The other two ADA issues directly affecting municipalities —employment discrimination and structural accessibility to public transportation, will be discussed in future issues of the TOWNSMAN.

If it is any help, the ADA requirements are essentially the same as the so-called "504" requirements under the 1973 Rehabilitation Act, except the ADA requirements apply even when the municipality receives absolutely no federal financial assistance. Since 1977, local units of government have been prohibited by Section 504 regulation from discriminating on the basis of handicap with regard to any federally assisted program or activity. For many years municipalities nationwide understood that requirement to pertain only to the particular program or activity that was directly assisted with federal tax dollars. In 1988, Congress amended the 504 statutes to clarify that the entire municipality and all its activities would be considered an overall "program" to which accessibility would be required if the municipality in any respect received federal financial assistance. Now, with the advent of ADA, the link between federal financial assistance and the municipal obligation to provide structural accessibility has been completely severed.

Except for the condition of federal financial assistance, a municipality's 504 obligations and ADA responsibilities are essentially the same. As will be discussed below, the immediate thrust of ADA will require municipalities to (1) inventory their present program accessibility situation and (2) formally plan for their structural accessibility improvements to be implemented over a three year period. As a consequence, any town or city with a reasonably up-to-date 504 file, including inventories of the current accessibility situation, projections of future accessibility needs, and an active 504 coordinator or committee, will have an effortless transition into ADA compliance.

For those municipalities whose 504 files are less than thorough or up-to-date, the ADA responsibilities are described in some depth here, and summarized at the conclusion of this article.

The General Prohibition

Title II of ADA law and the underlying regulation generally prohibit public service discrimination against persons with disabilities in an extremely comprehensive way. The overall statutory prohibition is as follows:

"No qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity."

For the purposes of this law, a "public entity" is defined as any state or local government or any department, agency, special purpose district or other instrumentality of a state or local government.

ADA regulations go on to embellish this general prohibition with a long list of more specific prohibitions, including:

discriminatory eligibility requirements for any public program;

contracting practices which discriminate on the basis of disability or favor contractors who discriminate;

municipal contributions to organizations, agencies or persons who provide aid, benefits or services in a discriminatory manner;

discrimination on the basis of disability with regard to appointments to planning or advisory boards;

siting or location selection decisions regarding public facilities that have the effect of excluding persons with disabilities;

any licensing, permitting or certification criteria that discriminate on the basis of disability; or the imposition of fees or surcharges on persons or groups of persons with disabilities when such fees are intended to cover the costs of measures that are necessary to provide nondiscriminatory access to public services.

With regard to structural accessibility to municipal buildings, facilities or programs, the regulation is worded as follows:

"No qualified individual with a disability shall, because a public entity's facilities are inaccessible to, or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity."

Existing Facilities

ADA regulations, as directed by federal law, impose different structural accessibility requirements for existing facilities than are imposed for new or newly altered facilities. Under ADA, the new facility or alteration requirements (discussed below) apply to any construction project commencing after January 26, 1992.

For existing facilities, the ADA regulations in two ways make it clear that absolute structural accessibility to every corner or every public building will not be required to achieve ADA compliance.

First, the regulations provide a defense in creating complete structural accessibility in certain circumstances. Those circumstances are when the creation of structural accessibility would (1) require a public entity to take any action that would threaten or destroy the historic significance of an historic property, (2) require the public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity, or (3) result in undue financial or administrative burdens.

The other way the ADA regulations allow for something less than complete structural accessibility to existing public buildings is by permitting alternative methods of providing public services to individuals with disabilities. The ADA regulations provide that a public entity may comply with the public service accessibility requirements by:

redesigning equipment, structural alteration or constructing new facilities;

reassignment of entire service programs to accessible buildings;

delivery of particular services to accessible locations;

assignment of aides to program beneficiaries;

home visits;

use of accessible vehicles; or

other methods that result in full accessibility to public services.

Although the ADA regulations are not at all clear on this point, one of the issues associated with providing services to individuals with disabilities in a special, unusual or alternative manner concerns the point at which separate treatment becomes unequal and discriminatory treatment.

For example, there is no way for a town to provide an alternative town meeting to a person who is unable to attend because of structural obstacles. A person has to be physically present at a town meeting to participate in that activity. Therefore, there is no defense for holding a town meeting in a structurally inaccessible location if such a decision has the effect of excluding a disabled person who wishes to attend. On the other hand, one might reasonably assume that a town clerk's office need not be structurally accessible as long as the town clerk is able to provide the clerk's services in an alternative manner, such as by providing a home visit or scheduling an appointment with a disabled individual at an accessible location.

A third type of situation arises when there exists structural inaccessibility to a public facility and the alternative service is substantially inferior to or more limited than the inaccessible services. An example of this situation might be a public library. The library may very well offer a bookmobile service of some kind to individuals who are unable to get into the actual library facility, and a municipality may be inclined to consider book delivery as a suitable alternative to full library accessibility. Against this consideration, it could easily be argued that the inside of a library offers a special atmosphere and ambiance that is not adequately replaced with a bookmobile service, and that an individual with a disability has a right, under ADA, to structural access to a library just as he or she has a clear right under ADA to town meeting access.

Therefore, even though ADA regulation states that a Public entity is "not required to make structural changes in existing facilities where other methods are effective in achieving compliance," municipalities should, through their ADA planning process, make every effort to articulate a defense of every circumstance of structural inaccessibility either on the grounds of historic significance, fundamental program alteration, undue financial or administrative burden, or with the formal provision of an alternative service that is not significantly inferior to full structural access. The ADA regulatory standard in this regard is that all alternative services be provided "in the most integrated setting appropriate."

New Construction and Alterations

As mentioned above, for the purposes of ADA a newly constructed or newly altered public building or facility is any public construction project commencing after January 26, 1992.

The ADA requirements for newly constructed or newly altered public buildings are simply the design standards found in the Uniform Federal Accessibility Standards (UFAS) or the published ADA Guidelines for Buildings and Facilities (ADAAG). Construction compliance with these published standards are deemed to comply with ADA law and regulation.

For all practical purposes, the UFAS or ADAAG construction standards are identical to the1986 ANSI accessibility standards, which Maine municipalities may be more familiar with because the ANSI standards are the applicable construction standards in Maine's accessibility law under the Human Rights Act. The UFAS/ADAAG standards are federally developed and published standards which can be copied out of the Code of Federal Regulations. The ANSl standards are privately published and therefore cost more to acquire than the UFAS standards and are protected by copyright laws. Another significant advantage to the ADAAG standards over their UFAS/ANSI counterparts is the tendency of the ADAAG standards to provide slightly more guidance with regard to the scope of accessibility required for minimum ADA compliance for any particular building project.

Any municipality contemplating the construction of a public building, road or facility should make sure the architect, engineer or design professional is familiar with or has a copy of either the UFAS, ANSI or ADAAG standards. An excellent source for assistance with such issues as alternative design standards and the applicable scope of accessibility for any particular building project is the State Fire Marshal's Office. (Municipalities should be aware, in fact, that municipal building design plans must be reviewed—for a fee—by the Fire Marshal's Office prior to construction. The Fire Marshal's Office reviews plans for compliance with Maine accessibility law, see 5 MRSA 4594-D(7).)

Roads

The other pertinent construction/alteration provision of ADA regulation is the requirement that all newly constructed or altered streets, roads, and highways must contain curb ramps or other sloped areas at any intersection having curbs or other barriers to entry from a street-level pedestrian walkway. Similarly, all newly constructed pedestrian walkways must contain sloped ramp-ways for barrier-free street intersection.

Municipal ADA Coordinators, Self-evaluations, Transition Plans and Structural Compliance Timetables

There are two interrelated aspects to ADA compliance: an evaluative/planning aspect for which there are some required procedures, and an implementation aspect whereby structural accessibility is effected. The beginning of the ADA compliance process, therefore, would be a designation of the official or committee charged with developing a compliance strategy. ADA regulation, in fact, requires municipalities with 50 or more employees to designate at least one employee to coordinate municipal compliance efforts and investigate all complaints or allegations of non-compliance. Municipalities with 50 or more employees must also adopt and publish a grievance procedure that will result in a prompt resolution to all ADA complaints.

All municipalities, regardless of size, have an initial ADA responsibility to conduct a self-evaluation of current services, policies, and practices, including employment practices. As discussed above, this responsibility to perform a self-evaluation is identical to the Section 504 self-evaluations that have been required, since 1977, of municipalities receiving federal financial assistance.

The self-evaluation would appear to require an identification of all existing situations of structural inaccessibility, as well as an inventory of non-structural inaccessibility, such as communication barriers to individuals who are deaf or blind, or program or employment eligibility requirements that have the effect of arbitrarily screening out disabled individuals. Presumably, the self-evaluation document should also include all defenses for not providing structural accessibility to identified locations, for reasons of historic significance, fundamental program alteration, undue financial or administrative hardship, or alternative service provision. ADA regulation requires the municipality to seek participation throughout the self-evaluation process from interested individuals with disabilities or advocacy organizations.

Any municipality employing more than 50 persons is required by ADA to keep on file, available for public inspection, a formal self-evaluation document that describes the areas of public service examined and any access problems identified, a description of all modifications made, and a list of all interested persons consulted throughout the self-evaluation process.

By reading ADA regulation between the lines, it would appear that the self-evaluation documentation has--in addition to its worth as a planning document--a value as "paper trail" evidence of good-faith attempts to achieve compliance, and for that reason all municipalities, regardless of the number of employees, should consider developing formal self-evaluation documentation by the January 26,1993 deadline.

Municipalities interested in obtaining model, check-off style self-evaluation forms should contact Lisa Madore, MMA's Legal Services secretary.

In addition to the special obligation of municipalities with 50 or more employees to prepare by January 26,1993 and keep on file a formal ADA self-evaluation, those municipalities are also required to develop a so-called "transition plan" by July 26,1992 if known structural changes to facilities will be undertaken to achieve program compliance. Beyond the different deadlines, it is not entirely clear what the difference is between the self-evaluation and the transition plan, except that the transition plan is focused more closely on structural modifications rather than nonstructural program modifications. The transition plan must include:

an identification of all physical obstacles to accessibility to public facilities;

an identification of all roadway curb obstacles to government offices and facilities, transportation conveyances, places of public accommodation (i.e., private sector commercial facilities and institutions serving the public), and places of employment;

a detailed description of the methods used to eradicate the barriers to access;

the schedule of modifications, to be effected as expeditiously as possible but not later than January 26,1995, and

the municipal official designated as responsible for ADA implementation.

As is the case with a self-evaluation, it would also appear appropriate to include in the transition plan all defenses for not providing structural accessibility to identified locations, for reasons of historic significance, fundamental program alteration, undue financial or administrative hardship or alternative service provision.

Communications

The municipal obligation to make available accessible methods of communication to the vision or hearing impaired is not very specific. There is a general obligation to make sure that communications with job or program applicants, public program participants, and members of the public who have impaired communication abilities are as effective or can be made as effective as communication with the non-disabled population. Municipalities can be required to provide auxiliary aids and services, such as sign language interpreters for public meetings, to afford an individual with a disability the equal opportunity to participate in any public service, program or activity. ADA regulations provide that the municipality give primary consideration to the specific type of auxiliary communication aid requested by the disabled individual. In so doing, the regulations imply that the municipal duty to provide auxiliary communications systems is triggered by specific requests, rather than being generally applicable in the absence of any known beneficiary.

As is the case with the obligations to provide structural accessibility, a municipality may defend a decision not to provide a requested auxiliary communication aid if it can be demonstrated that doing so would fundamentally alter the nature of the public service or program, or result in an undue financial or administrative burden.

Signage/Notice

There is also an ADA signage requirement that must be met by all public entities. All public entities are required under ADA to provide signs at all inaccessible entrances to each of their facilities, directing users to an accessible entrance or to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each accessible entrance of a facility. 

In addition, all public entities are required under ADA to provide sufficient notice, "in such a manner as the head of the entity finds necessary," to applicants, participants, beneficiaries, and other interested parties regarding the general provisions of ADA and its applicability to the services offered by the public entity. For this purpose it would probably be most efficient to have a copy of ADA law and regulation on file and, by posted notice and boilerplate language on contract bids and program eligibility materials, simply notify all persons of the general prohibition against discrimination on the basis of disability and invite interested parties to review the law and regulation materials on file.

It is not entirely clear whether the signage/notice requirements of ADA became immediately effective upon the initial effective date of the Act (January 26, 1992), or whether these requirements must be met in accordance with the municipality's self-evaluation schedule. In any event, the regulations cannot be read without an understanding that these signage/notice requirements should be effected as expeditiously as possible.

Complaints

ADA regulation creates a complaint process for persons who feel aggrieved by a public entity's alleged ADA non-compliance. After the complaint is filed with the appropriate federal agency, that agency investigates and attempts to secure an informal resolution. If that is not possible, the agency is directed to issue a letter of findings to the public entity and the complainant citing the violations alleged, the violations found, if any, and a description of their remedies. If violations are found, the next step is for the agency to attempt to formally secure a voluntary compliance agreement from the public entity. Failing a resolution of the complaint at this stage of the process, the matter is turned over to the U.S. Attorney General's Office for enforcement.

For the purposes of the publicly provided complaint procedure for this type of ADA violation, the regulations encourage the use of alternative means of dispute resolution, such as settlement negotiations, facilitation, mediation, fact-finding, "minitrials", and arbitration. Given that it is the clear thrust of ADA compliance regulation to avoid unnecessary litigation, and given that the regulations offer municipalities several types of defenses for avoiding extraordinarily expensive or administratively exhausting modifications to existing public service systems, and given that the 504 regulations have for 15 years been influencing municipalities toward full accessibility, it would appear extremely unlikely that a Maine municipality will find itself across a courtroom from the U.S. Attorney General's Office over ADA noncompliance.

It is important to point out, however, that individuals who feel aggrieved by a municipality's alleged ADA compliance have a private right of action against the municipality, as well as their right to the complaint procedure described above. It is a matter of record that Congress did not intend that those individuals must exhaust the administrative remedy before exercising their private right of action. (This simultaneous public and private right of action is consistent with 504 regulation and practice.). As the ADA commentary indicates, an individual's private right of action includes the "full panoply of remedies", not the least expensive of which would be the attorney's fees, which are awarded to the prevailing party.

Conclusion

A check-off summary of ADA responsibilities under Title 11, Part A of the Act is as follows:

Immediately obtain a copy of ADA law, regulations and accessibility design standards, such as ANSI or ADAAG. MMA is making available the Title II regulations, the ADAAG design standards, and model self-evaluation forms, approximately 100 pages of material, for a printing and handling charge of $10. For a packet of such material, contact Lisa Madore, MMA's Legal Services secretary.

Immediately appoint an ADA coordinator if the municipality employs 50 persons or more. Smaller municipalities may wish to appoint a coordinator or a committee, or the selectmen may take the ADA tasks on themselves.

Immediately review any existing 504 file, if any, for background accessibility inventories, plans, grievance procedures, etc.

Immediately develop a transition plan (as discussed in this article) if the municipality employs 50 or more persons. The regulatory deadline for the development of the transition plan is July 26, 1992.

Immediately develop a grievance procedure, if the municipality employs 50 or more persons, for handling complaints about non-compliance with ADA. Obviously smaller municipalities may also formally adopt grievance procedures as well, although this is not required by law.

Immediately begin developing the self-evaluation (as discussed in this article) to meet the January 26, 1993 deadline.

Immediately begin posting the required signs at both inaccessible and accessible points of entry, as discussed in this article.

Immediately review the design plans for any public construction project commencing after January 26, 1992, including road projects, to ensure compliance with any applicable accessibility design regulation.

By January 26, 1993, complete the self-evaluation.

By January 26, 1995, complete all modifications to effect full ADA compliance.