What the ADA Means for State and Local Governments

What does the Americans with Disabilities Act require of state and local governments? Do services like public transportation or rec center classes have to be accessible? 
In this clip of the ADA 101.3 State and Local Governments webinar, Joe Zesski and Jennifer Perry of the Northeast ADA Center talk about Title II of the law, which requires equal access for all state and local government services. For a transcript of today's episode, please visit the Ask About the ADA podcast feed on BuzzSprout.

NortheastADA.org

Transcript

[MUSIC PLAYING] 

JOE ZESSKI: Hello, welcome to Ask About the ADA, the podcast where we answer your questions about the Americans with Disabilities Act and how it applies to everyday life. On this week's episode, we're going to play for you a webinar that the Northeast ADA presented on May 25. 

It was part of the ADA 101 series, and its focus was on Title II. That is the part of the law that deals with state and local government and everything related to it. You'll hear two voices on the webinar. One is my own, Joe Zesski, and the other will be our access specialist here at the Northeast ADA Center, Jennifer Perry. So with that being said, I hope you'll enjoy it. 

[MUSIC PLAYING] 

Hello, and welcome everybody. This is Joe Zesski. I'm the program manager here at the Northeast ADA Center. This is ADA 101. This webinar is continuing in our ADA 101 series. This time, we're going to focus on Title II of the law. So we will explore it and hopefully provide a strong and broad overview of that particular area of the law for you. 

I am one of your presenters today, and joining me is Jennifer Perry, our access specialist here at the Northeast ADA Center. You'll hear her voice in a few minutes, as we'll be presenting the slides together. Just to remind you, the Northeast ADA is part of the ADA National Network. We are one of the 10 centers. 

Our service area, our focus, is on Region 2, which is New York, New Jersey, Puerto Rico, and the US Virgin Islands. And of course, we provide training, technical assistance, and research on the Americans with Disabilities Act. I'd mentioned, we focus on Region 2. But remember, the ADA is a federal law, and it's the same whether you're in New York, New Jersey, or Idaho, or Arizona. The law applies the same. 

As we talk today, remember that we are not providing legal advice. We're providing information to you, so keep that in mind as we go through today's presentation. In case some of you weren't with us in earlier ADA 101 sessions or in case you may have forgotten, we just wanted to give a quick reminder that the ADA has five different titles, five different sections of the law, that each address different areas. 

And so Title I is the part of the law that focuses on employment and including people with disabilities in the workforce. It is enforced by the Equal Employment Opportunity Commission. That is an important aspect of community participation. The second Title, the one we're focusing on today, addresses state and local government and all of the related agencies-- what their responsibilities are and what the rights are for people with disabilities relative to those state and local governments. 

Title III deals with what are called public accommodations. Those are basically businesses and non-profits. It's a shorthand but generally accurate. So that's providing access to the goods and services for people with disabilities to those public accommodations. Both Title II and III are enforced by the Department of Justice. Both Titles II and III also touch on transportation. Public transportation is addressed under Title II, and private transportation is addressed under Title III. And so the Department of Transportation also has some enforcement role under the titles as well. 

Title IV deals with telecommunications, and Title V is a miscellaneous Title that deals with different provisions of the law that cut across all the different titles, and that Title, Title V, will be combined with Title IV in the last series in the ADA 101 webinar series. And again, we're focusing today on Title II. And as I mentioned, that deals with state and local governance and making sure that people with disabilities have access to those services. 

And we'll get into the various aspects of what is covered from a Title II perspective and what are the requirements the law has for those entities. Of course, there's a general nondiscrimination requirement, and people with disabilities under the ADA need to have equal access and equal opportunity to enjoy and to benefit from the different aspects of community-- and including the services, facilities, and privileges that come from the Title II entity as well as other entities. 

A person with disability can't be discriminated against, obviously, on the basis of disability, and that applies in Title II to the programs, services, and activities that they offer. On top of that, individuals with disabilities cannot be asked questions about their disability that aren't necessary, and they also can't be denied the benefits of the programs and services under a Title II entity, or it has to meet eligibility criteria that would tend to screen out a person who uses a disability. 

There are a number of different requirements listed, and these will come up in different ways as we walk through Title II together. These are the basic requirements that are under the law. A Title II entity can't impose surcharges. In other words, they can't have a person with disability pay to receive the services or to receive accommodations or auxiliary aids or services in order to have that equal access. And we'll get more into that later on in the presentation, but be aware that it is a principle to keep in mind. 

Let's dig a little bit more into Title II, the general aspects of it. You heard me mention that Title II-- what is covered are the programs and services and activities of those entities. This comes out of the earlier law, Section 504. In fact, Title II of the ADA is an extension of that earlier law, the Rehabilitation Act. It moves what had been applied to federal government to state and local government. 

And so what is covered by Title II are all aspects of state and local government. That is not only the actual bodies, if you will-- for example, a town mayor. But it also includes everything that grows out of that-- the different agencies, the different functions and services that you receive in the community. All of those are going to be covered by Title II. 

And those are really varied, and we'll see examples of that and what the range is. And just to take a note here, it's important to consider all the different areas. We have some examples-- courthouses, access to the law enforcement system, services that would include services from a public police department. It would also include correctional facilities. It would include the court and the proceedings in state or local courts themselves. 

Title II also applies to education in terms of public schools, and so that's K through 12 public schools, but that also would apply to state and community-based colleges-- so state university, community college. Those are also going to be covered as Title II entities. It includes recreation and display-- so a museum, public library. 

If they're controlled by the state or local government, then they are going to be covered by Title II-- and the same with transportation, as I mentioned earlier-- another example, the local subway, the city subway, or light rail is going to be covered as a Title II entity and have obligations under Title II that they have to meet. And we're going to start exploring all of those different areas, which I said are pretty varied. So I am now going to introduce Jennifer Perry and hand off the microphone to her for our next portion. 

JENNIFER PERRY: Thank you, Joe. Hello, everyone. This is Jennifer Perry. So Joe and I are going to both take turns here talking to you all today about Title II of the ADA. So here what you see is a review of what are known as the administrative requirements. So these are obligations that public entities have under the ADA. 

And while there are obligations of things you kind of have to do, they're really a good exercise for public entities because they really help guide these entities in making sure that they are providing equal access for people with disabilities-- in other words, they provide a good road map, if you will, to achieve equal access for people with disabilities. 

So the first administrative requirement under the ADA is that Title II or public entities designate a responsible employee, someone that has the authority to make decisions and to take action, specifically for individuals with disabilities. Now, they don't have to be called the ADA Coordinator, but usually that's kind of the most common terminology that you'll find for this individual who is kind of charged with making sure that the public entity is complying with the requirements of the ADA. 

So we have the requirement for an ADA Coordinator or someone who fulfills those requirements who might have a different title. The second requirement is to establish a grievance procedure, and this is making it clear to the public who to call, how to contact them, what their email address is if you have a question about accessibility or about the ADA or a disability related inquiry for the public entity, particularly if you have a complaint. 

The grievance procedure lets how to go about filing that-- and as I said, who to file it with. And also, there should be an understanding about once you do file a grievance, what are the next steps. How soon can you expect to hear back from somebody? If you disagree, what are the next steps after that? Who are the responsible parties within the local public entity? 

So this really is a way to make it clear, if there are issues, particularly with ADA compliance, who do you call? How is that process handled, and how can you go about enforcing your rights under the ADA locally? Filing a local grievance with the ADA Coordinator is one option. I just want to be clear that people with disabilities also always have the option of filing a complaint directly with the US Department of Justice. 

Joe just pointed out that they ultimately have enforcement authority as well for Title II in most cases. So somebody certainly could choose to go that route. But a lot of times, issues can be handled at a local level. And certainly, hopefully, the expectation is that they could be resolved quickly as opposed to having to file a complaint with DOJ, although that option is still available to the public. 

The third obligation is to provide notice to the public. And this is a notice basically explaining that you are committed to implementing the ADA, that you are aware of your obligations under the law, that you have a grievance procedure, who the ADA Coordinator is. And this is also a way to let the public know, if they need certain kinds of accommodations, how to go about requesting them and who to request them from. 

You also want to make your commitment to the ADA known through various methods or platforms, so perhaps that is on your website, which is very common now. Perhaps it's by using bulletin boards in your city or local government or county buildings, demonstrating your notice about your commitment to the ADA. It might be when-- you receive telephone calls, there might be a message about ADA commitments. 

So you just want to make this available through multiple platforms, to let the public know that this is an issue that you are committed to, which brings us to the fourth administrative requirement for public entities under the ADA, and that is to conduct what's known as a self-evaluation. And a self-evaluation is an assessment of all of your programs and your services to identify any barriers to participation by people with disabilities. 

And this requirement to do a self-evaluation is certainly not new. As many of you might know, we're coming up on the 31st anniversary of the Americans with Disabilities Act. And this requirement to conduct a self-evaluation is as old as the ADA is. So again, it is not something that is new, but it's critical. Congress recognized when the ADA was passed 30 plus years ago that a lot of public entities offer programs and also services in buildings that might not be physically accessible to people with disabilities. 

And they also recognize that not every building that's owned by a public entity can easily be made fully accessible to people, particularly those with physical disabilities. But what's not acceptable under the ADA is to discriminate against people with disabilities and deny them access to the programs and services, particularly those that may be offered inside of an inaccessible building. 

So this self-evaluation allows the public entity to take a good hard look at what they're doing and, in addition, a good look at-- we all fall into, sometimes, well, this is how we've always done it, kind of methodology. We've always done it this way, so we're just going to keep doing it this way. , Sometimes doing a self-evaluation will bring to light, well, this is why we shouldn't perhaps continue doing it this way. 

We noticed that when people want to come and vote on election day at this one polling location, there are some real barriers, perhaps, for people with disabilities. The self-evaluation will bring some of those things to light so that you can begin to formulate a plan to address those issues. So the self-evaluation plan-- you take a look at all of your programs, all of your services. You're required to keep this on file for three years if you are a public entity with 50 or more employees. 

Now, the question always comes up, do I have to do another one? Maybe we did a self-evaluation-- Anytown, USA did their self-evaluation in 1993, and here we are in 2021. Should they be doing another one? Now, the Department of Justice does not come out and explicitly say, yes, you must, but the Department of Justice does say that you as a public entity have to comply with the requirements of the ADA. 

One of the best ways to do that, very likely, would be to take another look at your self-evaluation plan if you haven't-- I mean, excuse me, to do another self-evaluation if you haven't done so since 1993. I'm sure a lot of things have changed since 1993. So it's probably a very, very useful thing to do. Good-- best practice might be to consider updating that plan, depending on the size of the city or borough or municipality, every three to five years. 

Again, that's not a requirement. That's just a recommendation. Some towns are smaller than others, and they may not need to do a self-evaluation that frequently. But it certainly is a good idea because this is a process that enables you to identify where there are areas where access is problematic for individuals with disabilities. 

And the fifth administrative requirement is to develop a transition plan. Now, this transition plan is essentially a plan or a report, you might want to consider it, that identifies the architectural or the physical barriers that impact access to the public entity’s programs, services, and activities. This is only required to have been completed by entities that have 50 or more employees. Again, everyone is encouraged to develop one, but it is a very clear requirement for if you have 50 or more employees. 

And again, this has been around since the implementation of the ADA. So this should have been done back in the early '90s. The transition plan really is kind of the fruit, if you will, of the self-evaluation. So when you take a good hard look at all of your programs and your services and when you determine how to correct those deficiencies so that they're accessible for people with disabilities, there will be some instances when the only way to correct that deficiency is by engaging in construction or removing architectural barriers, which generally are going to be more costly. 

So those architectural barriers go into this transition plan, which details how these physical barriers are going to be addressed, when they're going to be addressed, and in what priority. It's very, very important that public entities solicit the opinion and the feedback of the local disability community when they are doing the self-evaluation plan as well as developing the transition plan where construction has to be undertaken to correct a barrier. 

The local disability community can absolutely be a voice of reason. There's a lot of times, given financial or budgetary constraints, you can't fix every accessibility barrier on day one. There's going to have to be some priority driven decisions that are made. And that's where the transition plan comes into place. That's where those priority driven decisions are located. 

So this is meant to be a living, breathing document, this transition plan. It's not something that you developed and threw in a drawer somewhere and then you blow the dust off every 10 years. It's really meant to be a good roadmap to achieving accessibility to all the public entities' programs, services, and activities. 

So that's the five administrative requirements. Sometimes we've received the question, what if we don't have 50 employees? Again, as I mentioned, still a good idea, if you have less than 50 employees, to appoint an ADA Coordinator and to establish the grievance procedure, again, to help effectively facilitate ADA compliance. 

Just because you don't have to appoint the ADA Coordinator doesn't mean, again, you don't have to comply with the ADA. So again, it's kind of a logical best practice to continue with these administrative requirements. So program accessibility-- that's really kind of a hallmark term, if you will, of Title II of the ADA. 

And Joe touched on this during the introduction piece, but program accessibility really boils down to making sure that all of your services and your activities are accessible to people with disabilities. Now, for Title II entities, this does not necessarily mean that you have to engage in physical changes or structural changes to a building, and this is something unique to Title II of the ADA. 

Because as I said, back when the ADA was signed into law, Congress knew a lot of our courthouses and our municipal buildings are already there, and a lot of them have been there for quite some time. And they have some barriers, particularly related to physical accessibility. What's important, again, and I'm sorry for repeating myself, but it really is the big takeaway of program accessibility, is that the fact that a building might be inaccessible does not mean that what occurs within those walls can be inaccessible as well. 

You have to come up with an alternate way to make what goes on inside those walls accessible to people with disabilities. So that might mean, if you had a courthouse that doesn't have an elevator, maybe you relocate or provide accessible courtrooms on the accessible level of the courthouse-- if you don't have an elevator, I should say, to get to the upper levels of the building. 

And again, we're going to assume for this part of our discussion that these are buildings built pre-ADA. If they're built after that, obviously, they should be accessible. You can also consider perhaps delivering services at an alternate site, perhaps modifying how you typically do things, which is your policies and procedures, if that's what's necessary to provide equal access for people with disabilities to a certain activity-- again, or delivering services in an alternate way. 

So maybe most people-- they might get their tax bill sent to them in the mail through the Postal Service. But if somebody with low vision may say, you know what? I prefer to have that emailed to me because I can then blow it up and screen magnify it, and it's more accessible to me to have my tax bill emailed to me. It's a very easy modification that can provide access for somebody, perhaps, with a visual disability. 

We also want to make sure that when we're achieving program accessibility, we don't want to go down the path of segregating individuals with disabilities. So there really is a concept of providing all of your services in the most integrated setting that is appropriate. All of us are familiar with this. We can think of public schools, where we all understand that it's not acceptable just to say that all children with disabilities have to be in classes solely with other children with disabilities. 

That determination of integration really is a very individualized assessment that has to be done, and when possible, we all know now that providing schooling in an integrated classroom certainly is a value not only to children with disabilities, but also to those without, when appropriate. So providing services in the most integrated setting appropriate is something we also want to consider. 

So what are programs, services, and activities? Well, according to the ADA regulations, and specifically when you're looking at your program, services, and activities and then developing the transition plan for those physical barriers that might be a problem, you're thinking of all of your services or activities that have a single purpose. 

It's an activity that's undertaken by a Department that somehow affords benefits, information, opportunities, or activities to one or more members of the public. So Joe gave you some examples of Title II entities-- of course, public schools, voting sites, public libraries, a lot of museums that are offered by the public. In many cases, public transportation falls under Title II of the ADA, and that list goes on and on. 

If you think of just a small town, a small town is going to still likely have some kind of city council or borough council. They may also have a planning board and a zoning board and a police department and perhaps a recreation department. All of the services and activities that those departments all provide all fall under Title II of the ADA, and all of those services and activities that those individual departments provide have to be, again, accessible for people with disabilities. 

So we'll take an example on our next slide of a city council meeting. So we can assume, typically, these city council meetings are held-- the purpose is to conduct city business, to communicate with residents. They are normally held in person. They're usually held once a month, but sometimes you hold special ones. Maybe there's a disaster or fiscal issues arise. 

When you're doing your self-evaluation, you'd want to look at and evaluate, are there any barriers for participation of people with disabilities to these city council meetings and include not only the typical monthly one, but also those special ones that may come up. And that includes looking at, are we offering the services of interpreters if members of the public need the use of an interpreter to attend the meeting? 

And if we are, how are we promoting that? Is that made available, that information made available to the public? How to request an interpreter? When do cuts go by? You want to think about, are the spaces where we're holding these meetings, are they physically accessible, especially for people who might have physical disabilities? Are you considering the layout of the room so that it's accessible? Do you offer assisted listening devices? 

So that self-evaluation helps you take a good hard look at this one example of one activity, a city council meeting, to help determine what the barriers might be for participation by people with disabilities. Again, just to reiterate, the ultimate nondiscrimination provisions of Title II of the ADA-- we go through this evaluation process. 

And we go through the process of developing a transition plan in order to ultimately provide equal opportunity for people with disabilities to not only benefit from programs, services, and activities but also just to have the ability to participate as other members of the public can in these activities. 

We also have to be aware as public entities that you have to reasonably modify how you normally do things, which means your policies, your practices, and your procedures to provide access for people with disabilities. We'll talk more about that specific point momentarily. That also means thinking about effective communication. Are you offering auxiliary aids and services for people with disabilities? And Joe is going to talk some more about that as well. But this would include things like sign language interpreters when requested. 

You also want to be careful about eligibility criteria that you establish for participation in certain programs. Nothing in the ADA says you can't establish eligibility criteria, particularly when it's based on sound facts and is really providing good safety for individuals participating in a program. But what you want to steer clear of is perhaps assuming that certain individuals with certain types of disabilities just can't participate in this program. 

I can think of the example of maybe you have a summer recreation program, and there are swim classes that are offered. You would want to be careful. If your eligibility criteria is that you have to be able to swim for so long to go into the deep end, and that's based on actual safety, then that wouldn't be a problem but you also wouldn't want to say, well, people with certain types of disabilities are not allowed to participate in this particular swim program because of perhaps erroneous assumption that people with certain types of disabilities aren't good swimmers. 

So you want to steer clear particularly of stereotypes or generalizations about individuals with disabilities and make individualized assessments of participants when they apply to participate in certain activities. You also want to pay attention to make sure you're having equal access to things like licensing as well as examinations and offering those things in alternate locations if their primary location is not accessible, letting people know that they can have access to things in alternate formats, which may be something as simple as a meeting agenda or instructions for how to take an exam in large print. 

A larger font-- that might be a very simple and easy to provide accommodation that can be very useful to many people with disabilities. And Joe mentioned this as well-- no surcharges. You can't charge people with disabilities. If someone requests an interpreter for a meeting, you can't charge them for that. You can't charge someone who tries to bring a service animal or comes into the courthouse with a service animal. You can't charge them for that. So no surcharges. 

And you also want to pay attention-- I know we did an earlier session about Title I of the ADA. But Title I provisions in the ADA that protect the rights of individuals with disabilities in the employment setting also apply to Title II entities and the employees of Title II entities, so you want to just make sure you're still paying attention to those. 

So when we're thinking on-- and I'm specifically going back to our self-evaluation process and our transition plan, remember you want to look at the programs that are occurring in your existing facilities, and remember, those programs have to be accessible in their entirety. So you can't deny benefits to people with disabilities simply because they're located in an inaccessible building. 

So what is an existing facility? Well, for terms of this conversation today and especially when you're doing a self-evaluation, existing would mean in this case, built prior to the implementation of the ADA. So for Title II entities, that will be pre-January of 1992. And when is something accessible? So what's your benchmark? What's your tape measure? How do we determine if something is accessible? 

Well, that largely hinges on either the construction date of a facility that's owned by a public entity or perhaps the last time a facility was altered by a public entity. So timing is important. We have what we call now a newer reference point for determining what accessible means for physical accessibility, and that is the 2010 ADA Standards for Accessible Design. And these are the standards that apply for any facilities that are newly constructed or alterations to older facilities, including when you're trying to do alterations to achieve program access. 

So this became the benchmark effective March 15 of 2012. But prior to that date, there were other accessibility requirements, and they were known as 1991 ADAAG, or the ADA Accessibility Guidelines, or another standard called UFAS could have been used to achieve physical accessibility. In the interest of time, I'm not going to dwell on these questions, but certainly if you have questions about the technical standards for accessibility, you can always reach out to your local ADA center, and they could talk to you about those. 

But one thing that is really important to note is that we had a major update, if you will, in March of 2012 to the ADA standards for design, and a lot of new things were added that never had accessibility requirements attached to them before, especially when we talk about recreation-- so things like swimming pools and boating facilities, fishing piers, golf courses, play areas like playgrounds. They all, as I said, did not have accessibility requirements prior to March 15, 2012. They now do. 

So if your self-evaluation plan is dated 1993 and you have swimming pools that you haven't looked at or thought about since 1993, this might be one of the good reasons to-- maybe we need to do another self-evaluation because we know we have added or altered swimming pools or boating facilities. And there's other areas as well that you should consider, but certainly these are one motivating reason to take another look at your self-evaluation plan, if it is older. 

Moving on to the next slide, this is just letting the 2010 ADA Standards for Accessible Design absolutely apply to state and local government facilities as well as places of public accommodation and commercial facilities. You can access them online at the Department of Justice's ADA website, which is ada.gov. 

When you're doing this self evaluation and the transition plan and you're trying to determine if the toilet room in the courthouse complies with the ADA standards, we know what our benchmark is, either, depending on the construction date, the old ADAAG standards or the current 2010 standards. But in some cases, under Title II, you may have to go a little bit above and beyond those minimum standards for accessibility. 

So the ADA as an example never says that you have to provide automatic doors at public buildings. Now, public entrances for the most part, yes, these have to be accessible to people with disabilities. But there's no requirement for them necessarily to be automated or to have power assist features. I will never discourage anyone from doing so. They provide greater universal accessibility. 

But in some cases, if you have a large number of people coming on a monthly basis to attend a city council meeting and even if your front doors at the borough hall meet the minimum standards for accessibility, you may have an older population, and you may get 25 or 30 complaints a month about those doors not working. Automatic doors in that instance might be a way to achieve program accessibility. So it certainly is something that you'd want to consider. 

Same thing applies with parking. The ADA has minimum requirements for accessible parking, including the minimum number of spaces you have to provide. But in certain public facilities, you may find that that's just not enough. It's not meeting the demand or the needs of the community. So you may want to provide more than what you're required to. 

So these are just some of the instances that you would want to consider not just saying, well, we meet the minimum standards. You might want to consider going above and beyond. And I'm looking at the clock. So in the interest of time, [LAUGHS] normally we go through this exercise where I would ask you, have you ever removed any barriers to access, and what did you do to make something more accessible? 

Some of the common examples are things that you can see on the next slide or two-- like installing ramps where there may only be steps, certainly installing curb cuts, repositioning shelving so that things can be within accessible reach ranges, perhaps by someone who uses a wheelchair, rearranging the layout, relocating tables or chairs, installing flashing alarm lights for individuals with disabilities, installing accessible door hardware, putting grab bars in toilet stalls or a raised toilet seat. 

So there's a number of examples here, but certainly you've probably all done things or seen other things improved that you might not have considered as a removal of a barrier that helps achieve program access. But in a sense, it's kind of what they are. And I think I'm going to leave you with this last obligation for public entities, and that's the obligation to reasonably modify your policies, your practices, and your procedures. 

The ADA tells us, just doing things the way you always do them and being unwilling to deviate in any way because this is the policy, will always get you into trouble under the ADA. The expectation is that you will reasonably modify those policies to benefit somebody with a disability unless doing so would fundamentally alter your program or your service. And a fundamental alteration really is a very high bar. 

It's a change that would be so significant that it alters the essential nature of your services, your facilities, advantages, or accommodations that are being offered. So a fundamental alteration-- you're not expected to do that, but somebody might come in for a library card and the usual way the process works is, the librarian hands you an application, and somebody completes it, and then they give it back to the librarian, and then they get their card. 

But somebody with a disability may come in, and they may need some assistance, perhaps, completing the application. And it's not very cumbersome. It's not something that's going to take several hours. It's not what's normally done, but if that librarian can provide some assistance in helping someone fill out that library application, that's an example of a reasonable modification of a policy of practice or procedure-- probably things that many public employees do every day because they're committed to providing equal access and they don't think of it as a reasonable modification. 

It's just kind of the right thing to do. It's also good customer service. But it is also an obligation under the ADA. And one of the more common examples of reasonable modification of a policy is service animals, and we have a number of webinars on this topic. So I don't want to I don't want to dwell on this. [LAUGHS] But many public entities, of course, have no pets policies. 

No pets are allowed when you go to court or if you're going to borough hall or in certain other areas that public entities have oversight of. But many of you are very likely aware that service animals are not pets, so a reasonable modification of a no pets policy would be to permit an individual with a disability who has a service animal to bring their service animal into the courthouse, even though other pets obviously would not be permitted. 

And there's the two questions that obviously entities could ask if somebody did enter a facility with a service animal-- is it required because of a disability? And what work or task has the animal been trained to perform? OK, I think, Joe, I'm going to pass it back to you. We're on specialized programs for people with disabilities. 

JOE ZESSKI: Exactly. Thank you, Jen. And what this gets to is something that Jen addressed a little bit earlier, and that's the idea of being as inclusive in the programs and services activities as possible. She mentioned the example of public schools and children with disabilities not being excluded from the classroom based on their disability. 

Part of that comes from the idea that people with disabilities need to be included in the regular setting to the degree that is appropriate. In terms of specialized programs and programs that are, quote unquote, separate or different, those are possible, but there are a lot of guidelines or restrictions around that. 

And the first one is that a separate program should only be offered if it's necessary to make sure that the person with a disability has the same or equal access to whatever program or service or activity was being offered. For example, let's say we have a state art museum. Now, of course, typically most museums-- not all, but most museums-- discourage people from physically touching displays or being interactive. 

A state museum might choose to offer a tour for individuals who are blind or low vision that does allow physical interaction with some of the displays. That could be a separate program that could be permitted to allow for an equal benefit to the service or program-- in this case, the museum-- and what it offers, which is the display. 

Now, a person with a disability-- we'll keep this same example-- can't be forced, though, to choose or to take advantage of that separate program. If the person with a disability wishes to, then they have every right to, but they can't be required to take that alternate program if they don't choose to. 

It's also important to keep in mind that separate programs or special programs can't be used as substitutes for other ADA related obligations. You can't have a separate program purely for the purpose of avoiding creating accessible locations or having accessible locations, or you can't have a program so that, as an entity, a museum might not need to offer an auxiliary aid or service. 

So the fact that separate programs are permitted can't be used as a way to circumvent other ADA related obligations that a covered entity has to follow. Now, there are exceptions. The ADA always has to be looked at on a case by case basis, and the circumstances do need to be considered. 

So let's say there's no other way other than having a separate program to accommodate or to provide equivalent access to a person with disability, or to do so would cause a fundamental alteration, as you heard Jennifer mentioned just a few minutes ago, or an undue financial administrative burden so there's just no way to make this program accessible. Well, what can a public entity do? 

Well, first of all, they have obligations to follow. They have to reasonably look at the situation, and if they determine that, well, there's simply no way to create that equal access, the head of the entity in question has to provide that information in writing after looking at all the resources available, what can they tap into to provide access, they must provide a written response as to why they are not able to do so. And even so, they still have to find other ways to make programs accessible. So they need to look at other options, maybe that wouldn't provide the same level of access, but would provide some opportunity to have accessibility. 

As Jen mentioned earlier, some of this gets into areas that are a little more complex than we have time to deal with. There are cases, for example, where buildings may be historic or there are terms in the physical standards known as safe harbor that may allow or may permit a covered entity from not providing the maximum accessibility possible. Those are a little bit more complicated, and design requirements, as Jen mentioned with the service animal webinars, can be plentiful, and we certainly have several on our own website that might be helpful to explore this more. 

So beyond the special programs, let's go to our next slide. And one more requirement that we want to explore for Title II entities, which is also very important, is effective communication. You heard us mention this along the way so far, and we just want to take a few moments to explore it a little further. Effective communication is a concept here in Title II, and it comes up also in Title III, where there's an obligation on covered entities to make sure that communication for people with disabilities is as equally effective as that offered to people without disabilities. 

And so effective communication is a term that applies to people with communication related disabilities as well as their companions. Communication related disabilities would include vision. It would include hearing, and it would include speech. And in a few moments, I will talk more about different examples of providing effective communication for different types of disabilities. 

The obligation to provide effective communication covers all forms of interaction that are communication based. So what does that mean? It means that not only does the direct person to person interaction between a person with disability and an individual working for a Title II entity has to be effective, it also covers published materials, print websites, announcements that are made, or videos that are produced. 

I will make a little side note here that websites are becoming more and more of an issue in Title II. While there are not explicit requirements or standards laid out for websites under the ADA, there is a requirement that websites for state and local governments be accessible. And again, unfortunately, that is another topic that is very deep, and we won't get into more today. But keep in mind that effective communication does apply to websites. 

Now, when a Title II entity is looking at providing effective communication, one thing that they have to consider that other parts of the ADA do not require is that primary consideration has to be given to the preference of the person with the disability. So that means that, if it is at all possible without causing an undue financial or administrative burden, the communication preference. 

So let's say it's a sign language interpreter, or let's say that someone prefers to have communication by email rather than in physical print-- that must be honored if it is all possible. So it creates a higher standard than, say, a business would have to follow to provide effective communication. And a business, of course, would come under Title III of the ADA, which is a separate conversation. 

What makes for effective communication? And sometimes it can be hard to think of it when you're looking at, well, if I'm communicating with my town's tax office or communicating with the city college, what does that mean? If you think about it in terms of sort of a more one on one experience, think of it as if you have a significant other or a partner. What makes for good communication? Obviously, you both need to understand each other. You want to make sure that the communication is clear and both sides understand what the other is saying. 

And that not only applies in terms of one-way communication. It goes to both parties. So it's both sending or speaking or projecting communication but also receiving, hearing, reading that communication. And ultimately, looking at what makes the communication effective is going to be based on the outcome. What do the results say? Is the communication being conducted effective and really achieving its purpose that it has? 

And to achieve effective communication, a public entity under Title II might need to provide an auxiliary aid or service. And auxiliary aid or service is simply a device or a service that would facilitate that effective communication. So there are different examples. I mentioned different types of communication related disabilities. 

So for someone who has a hearing related disability or who is deaf, you may have a requirement or a request for a qualified interpreter. You may need assistive listening devices or closed captioning, or it might require exchanging written notes. For people who have vision related disabilities, often alternative formats might be needed or perhaps a qualified reader. Also for someone who is blind or very low vision, physical guidance could be a service that a covered entity might offer. 

And for those who have speech related disabilities, things like allowing the use of a communication board or having access to a computer terminal might be needed, or simply, sometimes, it may just be needing additional time to communicate, which depending on the part of the country that you come from, may or may not be natural to you. I know, certainly here in the Northeast, we tend to rush through things. 

How do you decide what is an appropriate auxiliary aid or service? How does a Title II entity do that? Well, there's a couple of things. One, as I mentioned earlier, you need to look at the primary choice, the primary preference for the person with a disability in a given situation. But then you need to look at these other factors, things like, what's the level of complexity? 

Is the communication simply someone going in to pay their sewer bill at local municipal building where, if they have a hearing related disability, maybe they could just exchange notes. Or is it someone's going to a city clinic, a health clinic, where they're having a diagnosis done on a condition, where perhaps a person who is deaf might require a sign language interpreter. 

So again, the complexity of the communication involved is important-- and the duration of it and, as you sort of can glean from my examples, it's also the setting-- the context that's important. So these are all things that you have to look at when trying to weigh what is the right auxiliary aid or service for a given situation or circumstance. 

[MUSIC PLAYING] 

I hope you enjoyed the webinar today. Feel free to go back to the archive webinar page at the Northeast ADA to view the entire webinar archive as well as the slides that go along with it. Meanwhile, I'd like to thank Grace Fairchild, our producer and main editor for the Ask About the ADA podcast, also Peter Quinn for his work on finalizing our podcasts and making sure it's ready to listen, and thank you to Jennifer Perry for presenting the webinar along with me back in May. 

Always remember that if you have any questions about the Americans with Disabilities Act, please feel free to reach out and contact us at the Northeast ADA. You can email us at NortheastADA@cornell.edu. Visit our website at NortheastADA.org or call us at 1-800-949-4232. And of course, follow us on social media as well. Thank you for listening, and I hope this helps continue the conversation. 

[MUSIC PLAYING]