U.S. Department of Housing and Urban Development

PUBLIC AND INDIAN HOUSING

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Special Attention of: Notice PIH 95-48 (HA)

Secretary\'s Representative; Directors,

Public Housing Division; Directors, Issued: July 17, 1995

Fair Housing and Equal Opportunity Expires: July 31, 1996

Division, Directors, Administration

Service Center Administrators,

Office of Native American Cross References:

Programs; Housing Agencies

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Subject: Americans with Disabilities Act

1\. Purpose. This Notice serves to notify all public housing

agencies and Indian housing authorities (HAs) that they must

comply with Title II of the Americans with Disabilities Act

(ADA) (42 U.S.C. 12131-12134). All HAs that administer

Federally funded public housing and/or Section 8 rental

assistance are covered by the requirements of Title II of

the ADA (Note: The ADA does not apply to Indian housing

authorities (IHAs) established by exercise of a Tribe\'s

powers of self government). The ADA does apply to IHAs

created by State law for which the Department of Housing and

Urban Development has determined that the Indian Civil

Rights Act is inapplicable. AlI IHAs are covered by Section

504 and implementing regulations at 24 CFR Part 8.

2\. Background. Most of the requirements of Title II of the ADA

are based on Section 504 of the Rehabilitation Act of 1973,

which prohibits discrimination on the basis of disability in

federally-assisted programs and activities. The ADA

similarly extends nondiscrimination requirements to all

activities of State and local governments including public

housing. These requirements also apply to HAs that do not

receive Federal financial assistance.

3\. Requirements. Regulations implementing the ADA were issued

by the Department of Justice (DOJ) at 28 CFR Part 35, 36 &

37\. The regulation (28 CFR Part 35) which implements Title

II for State and local governments including public housing

became effective January 26, 1992.

PH : Distribution: W-3-1, W-2(H) , R-3-1(PIH), R-6, R-7 , R-9 ,

138-2 , 138-7

2

Guidance concerning compliance with the ADA is contained in the

attached publication issued by the DOJ entitled \"The Americans

with Disabilities Act; Title II Technical Assistance Manual.\" HAs

should read this manual in its entirety to familiarize themselves

with the requirements of Title II of the ADA. There are two

significant provisions that should be noted:

1\. Section II-6.2100 of the manual provides that HAs may choose

from two design standards for new construction and

alterations for purposes of compliance with the ADA They can

choose either the Uniform Federal Accessibility Standards or

the Americans with Disabilities Act Accessibility Guidelines

for Buildings and Facilities (ADAAG). If ADAAG is chosen,

however, HAs are not entitled to the elevator exemption

(which permits certain buildings under three stories or

under 3,000 square feet per floor to be constructed without

an elevator). In addition, HAs must also comply with the

Fair Housing Act, including the design and construction

requirements applicable to covered multifamily dwellings for

first occupancy after March 13, 1991. The ADAAG is currently

being revised by the Access Board (the Architectural and

Transportation Barriers Compliance Board). For information

on the status of the revisions, the Access Board can be

reached at (202) 275-5334. Note: The ADAAG is part of Title

III\. Therefore, except for the ADAAG, Title III does not

apply to State and local governments.

2\. Section II-8.2000 requires that HAs were to have done a self

evaluation by January 26, 1993. Section II-8.3000 provides

that where structural modifications were required to achieve

program accessibility, HAs with more than 50 employees were

to have done a transition plan by July 26, 1992, that

provides for the removal of these barriers. Any structural

modifications were to have been completed as expeditiously

as possible, but, in any event, by January 26, 1995. If a HA

3

completed a 504 transition plan, then the HA must complete

an ADA Title II transition plan which need only cover those

barriers to accessibility that were not addressed by its 504

transition plan. If the 504 transition plan covered all

barriers to accessibility in accordance with Title II of the

ADA and implementing regulations at 28 CFR Part 35, no

further action is required by the HA with regard to the

development of a transition plan. Copies of Title II, 28 CFR

Part 35 and ADAAG may be obtained by calling the DOJ at 1-

800-514-0301 or (202) 514-0301 (TDD 1-800-514-0383).

Assistant Secretary for Public

and Indian Housing

Attachment

U.S. Department of Justice

Civil Rights Division

Office of the Americans with D isabilities Act

THE AMERICANS WITH DISABILITIES ACT

TITLE II TECHNICAL ASSISTANCE MANUAL

FOREWORD

The Americans with Disabilities Act has set our sights on removing the

barriers that deny individuals with disabilities an equal opportunity to

share in and contribute to the vitality of American life. The ADA means

access to jobs, public accommodations, government services, public

transportation, and telecommunications - in other words, full
participation

in, and access to, all aspects of society.

Through the provision of technical assistance, such as this

manual, we hope to achieve our goal of making the ADA\'s promise of

equal opportunity for individuals with disabilities a reality while

holding costly litigation to a minimum. We anticipate that many of the

barriers facing individuals with disabilities will disappear through

the sincere, informed efforts of Americans to voluntarily comply with

the ADA.

We in the Civil Rights Division wholeheartedly share the goals of the

ADA and have committed ourselves to implementing and enforcing this

landmark civil rights legislation in the fairest, most effective manner

possible.

John R. Dunne

Assistant Attorney General

Civil Rights Division

Introduction

This technical assistance manual addresses the requirements of title

II of the Americans with Disabilities Act, which applies to the
operations

of State and local governments. It is one of a series of manuals to be

issued by Federal agencies under Section 506 of the ADA to assist

individuals and entities in understanding their rights and duties under
the

Act.

This manual is part of a broader program of technical assistance

conducted by the Department of Justice to promote voluntary compliance
with

the requirements not only of title II, but also of title III of the ADA,

which applies to public accommodations, commercial facilities, and
private

entities offering certain examinations and courses.

The purpose of this technical assistance manual is to present the

ADA\'s requirements for State and local governments in a format that
will be

useful to the widest possible audience. The guidance provided in the

Department\'s regulations and accompanying preambles has been carefully

reorganized to provide a focused, systematic description of the ADA\'s

requirements. The manual attempts to avoid an overly legalistic style

without sacrificing completeness. In order to promote readability and

understanding, the text makes liberal use of questions and answers and

illustrations.

The manual is divided into nine major subject matter headings with

numerous numbered subheadings. Each numbered heading and subheading is

listed in a quick reference table of contents at the beginning of the

manual. The numbering system is designed to facilitate planned periodic

updates of the manual.

CONTENTS

II-1.0000
COVERAGE\...\...\...\...\...\...\...\...\...\...\...\...\...\...\....1

II-1.1000
General\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....1

II-1.2000 Public
entity\...\...\...\...\...\...\...\...\...\...\...\...\.....1

II-1.3000 Relationship to title
III\...\...\...\...\...\...\...\...\...\...1

II-1.4000 Relationship to other
laws\...\...\...\...\...\...\...\...\.....2

II-1.4100 Rehabilitation Act\...\...\...\...\...\...\...\...\...\.....2

II-1.4200 Other Federal and State laws\...\...\...\...\.....2

II-2.0000 QUALIFIED INDIVIDUALS WITH DISABILITIES\...\...\...\...\...3

II-2.1000
General\...\...\...\...\...\...\...\...\...\...\...\...\...\....3

II-2.2000 Physical or mental impairments\...\...\...\...\...\.....3

II-2.3000 Drug addiction as an impairment\...\...\...\...\...\....4

II-2.4000 Substantial limitation of a major life activity\...4

II-2.5000 Record of a physical or mental impairment

that substantially limited a major life activity..6

II-2.6000 \"Regarded
as\"\...\...\...\...\...\...\...\...\...\...\...\....6

II-2.7000
Exclusions\...\...\...\...\...\...\...\...\...\...\...\...\....7

II-2.8000 Qualified individual with a disability\...\...\...\...7

II-3.0000 GENERAL
REQUIREMENTS\...\...\...\...\...\...\...\...\...\...\....9

II-3.1000
General\...\...\...\...\...\...\...\...\...\...\...\...\...\....9

II-3.2000 Denial of participation\...\...\...\...\...\...\...\...\...9

II-3.3000 Equality in participation/benefits\...\...\...\...\....9

II-3.4000 Separate benefit/integrated setting\...\...\...\.....10

II-3.4100 Separate programs\...\...\...\...\...\...\...\...\...10

II-3.4200 Relationship to \"program accessibility\"

requirement\...\...\...\...\...\...\...\...\...\...\...\.....10

II-3.4300 Right to participate in the

regular program\...\...\...\...\...\...\...\...\...\...\...10

II-3.4400 Modifications in the

regular program\...\...\...\...\...\...\...\...\...\...\....11

II-3.5000 Eligibility criteria\...\...\...\...\...\...\...\...\.....12

II-3.5100 General\...\...\...\...\...\...\...\...\...\...\...\....12

II-3.5200 Safety\...\...\...\...\...\...\...\...\...\...\...\.....12

II-3.5300 Unnecessary inquiries\...\...\...\...\...\...\.....12

II-3.5400 Surcharges\...\...\...\...\...\...\...\...\...\...\....12

II-3.6000 Reasonable modifications\...\...\...\...\...\...\...\....13

II-3.6100 General\...\...\...\...\...\...\...\...\...\...\...\....13

II-3.6200 Personal services and devices\...\...\...\...\...13

II-3.7000 Contracting and licensing\...\...\...\...\...\...\...\...13

II-3.7100 Contracting\...\...\...\...\...\...\...\...\...\...\...13

II-3.7200 Licensing\...\...\...\...\...\...\...\...\...\...\.....13

II-3.8000 Illegal use of drugs\...\...\...\...\...\...\...\...\.....14

II-3.9000 Discrimination on the basis of association\...\....15

II-3.10000 Maintenance of accessible features\...\...\...\.....15

II-3.11000 Retaliation or coercion\...\...\...\...\...\...\...\....16

II-3.12000
Smoking\...\...\...\...\...\...\...\...\...\...\...\...\.....16

II-4.0000
EMPLOYMENT\...\...\...\...\...\...\...\...\...\...\...\...\...\....17

II-4.1000
General\...\...\...\...\...\...\...\...\...\...\...\...\...\...17

II-4.2000 Relationship among title 11 and other Federal

laws that prohibit employment discrimination

by public entities on the basis of disability\....17

II-4.3000 Basic employment requirements\...\...\...\...\...\.....17

II-4.3100 Nondiscriminatory practices and policies\....17

II-4.3200 Reasonable accommodation\...\...\...\...\...\.....17

II-4.3300 Nondiscrimination in selection criteria

and the administration of tests\...\...\...\....18

II-4.3400 Preemployment medical examinations and

medical inquiries\...\...\...\...\...\...\...\...\...18

II-5.0000 PROGRAM
ACCESSIBILITY\...\...\...\...\...\...\...\...\...\.....19

II-5.1000
General\...\...\...\...\...\...\...\...\...\...\...\...\...\...19

II-5.2000 Methods for providing program accessibility\...\...20

II-5.3000 Curb
ramps\...\...\...\...\...\...\...\...\...\...\...\...\...21

II-5.4000 Existing parking lots or garages\...\...\...\...\.....21

II-5.5000 Historic preservation programs\...\...\...\...\...\....21

II-5.6000 Time periods for achieving program accessibility

accessibility\...\...\...\...\...\...\...\...\...\...\...\...22

II-6.0000 NEW CONSTRUCTION AND ALTERATIONS\...\...\...\...\...\...\...23

II-6.1000
General\...\...\...\...\...\...\...\...\...\...\...\...\...\...23

II-6.2000 Choice of design standard: UFAS or ADAAG\...\...\...23

II-6.2100 General\...\...\...\...\...\...\...\...\...\...\...\....23

II-6.3000 Major differences between ADAAG and UFAS\...\...\...23

II-6.3100 General principles\...\...\...\...\...\...\...\.....23

1\) Work areas\...\...\...\...\...\...\...\...\...\...\...\...23

2\) Equivalent facilitation\...\...\...\...\...\...\.....24

3\) Exemption from application of standards

in new construction\...\...\...\...\...\...\...\....24

4\) Exemption from application of standards

in alterations\...\...\...\...\...\...\...\...\...\...24

5\) Alterations triggering additional

requirements\...\...\...\...\...\...\...\...\...\....24

6\) Additions\...\...\...\...\...\...\...\...\...\...\...\....25

II-6.3200
Elements\...\...\...\...\...\...\...\...\...\...\...\...\.....25

1\) Van parking\...\...\...\...\...\...\...\...\...\...\.....25

2\) Valet parking\...\...\...\...\...\...\...\...\...\...\...25

3\) Signs\...\...\...\...\...\...\...\...\...\...\...\...\.....26

4\) Entrances\...\...\...\...\...\...\...\...\...\...\...\....26

5\) Areas of rescue assistance or places

of refuge\...\...\...\...\...\...\...\...\...\...\....27

6\) Water fountains\...\...\...\...\...\...\...\...\...\....27

7\) Storage and shelves\...\...\...\...\...\...\...\...\...27

8\) Volume controls\...\...\...\...\...\...\...\...\...\....27

9\) Telecommunication Devices for

the Deaf (TDD\'s)\...\...\...\...\...\...\...\...\....28

10\) Assembly areas\...\...\...\...\...\...\...\...\...\....28

11\) Automated teller machines (ATM\'s)\...\...\...\...28

12\) Bathrooms\...\...\...\...\...\...\...\...\...\...\...\...29

13\) Detectable warnings\...\...\...\...\...\...\...\.....29

14\) Carpet and carpet tile\...\...\...\...\...\...\.....29

15\) Curb ramps\...\...\...\...\...\...\...\...\...\...\.....29

16\) Elevator hoistway floor designations

and car controls\...\...\...\...\...\...\...\...\....29

17\) Visual alarms\...\...\...\...\...\...\...\...\...\.....30

18\) Elevators and platform lifts in new

construction and alterations\...\...\...\...\....30

II-6.3300 Types of facilities\...\...\...\...\...\...\...\....30

1\) Historic buildings\...\...\...\...\...\...\...\...\....30

2\) Residential facilities/transient lodging\...\...30

3\) Restaurants\...\...\...\...\...\...\...\...\...\...\.....31

4\) Medical or health care facilities\...\...\...\....31

5\) Mercantile\...\...\...\...\...\...\...\...\...\...\...\...32

6\) Jails and prisons\...\...\...\...\...\...\...\...\.....32

II-6.4000 Leased buildings\...\...\...\...\...\...\...\...\...\...\...32

II-6.5000 Alterations to historic properties\...\...\...\...\...32

II-6.6000 Curb
ramps\...\...\...\...\...\...\...\...\...\...\...\...\...34

II-7.0000
COMMUNICATIONS\...\...\...\...\...\...\...\...\...\...\...\...\....35

II-7.1000 Equally effective communication\...\...\...\...\...\...35

II-7.1100 Primary consideration\...\...\...\...\...\...\.....36

II-7.1200 Qualified interpreter\...\...\...\...\...\...\.....37

II-7.2000 Telephone communications\...\...\...\...\...\...\...\....38

II-7.3000 Emergency telephone services\...\...\...\...\...\...\...38

II-7.3100 General\...\...\...\...\...\...\...\...\...\...\...\....38

II-7.3200 911 lines\...\...\...\...\...\...\...\...\...\...\.....39

II-7.3300 Seven-digit lines\...\...\...\...\...\...\...\...\...39

II-7.3400 Voice amplification\...\...\...\...\...\...\...\....39

II-8.0000 ADMINISTRATIVE
REQUIREMENTS\...\...\...\...\...\...\...\...\...40

II-8.1000
General\...\...\...\...\...\...\...\...\...\...\...\...\...\...40

II-8.2000 Self-evaluation\...\...\...\...\...\...\...\...\...\...\....40

II-8.3000 Transition plan\...\...\...\...\...\...\...\...\...\...\....43

II-8.4000 Notice to the public\...\...\...\...\...\...\...\...\.....44

II-8.5000 Designation of responsible employee and

development of grievance procedures\...\...\...\.....44

II-9.0000 INVESTIGATION OF COMPLAINTS AND ENFORCEMENT\...\...\.....45

II-9.1000
General\...\...\...\...\...\...\...\...\...\...\...\...\...\...45

II-9.2000
Complaints\...\...\...\...\...\...\...\...\...\...\...\...\...45

INDEX\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\...\.....49

II-1.0000 COVERAGE

Regulatory references: 28 CFR 35.102-35.104.

II-1.1000 General. Title II of the ADA covers programs, activities, and

services of public entities. It is divided into two subtitles. This
manual

focuses on subtitle A of title II, which is implemented by the
Department

of Justice\'s title II regulation. Subtitle B, covering public

transportation, and the Department of Transportation\'s regulation

implementing that subtitle, are not addressed in this manual.

Subtitle A is intended to protect qualified individuals with

disabilities from discrimination on the basis of disability in the

services, programs, or activities of all State and local governments. It

additionally extends the prohibition of discrimination on the basis of

disability established by section 504 of the Rehabilitation Act of 1973,
as

amended, to all activities of State and local governments including
those

that do not receive Federal financial assistance. By law, the Department
of

Justice\'s title II regulation adopts the general prohibitions of

discrimination established under section 504, and incorporates specific

prohibitions of discrimination from the ADA.

Subtitle B is intended to clarify the requirements of section 504 for

public transportation entities that receive Federal financial
assistance.

Also it extends coverage to all public entities that provide public

transportation, whether or not they receive Federal financial
assistance.

It establishes detailed and complex standards for the operation of
public

transit systems, including commuter and intercity rail (AMTRAK). The

Department of Transportation is responsible for the implementation of
the

second subtitle of Title II and issued a regulation implementing that

subtitle.

II-1.2000 Public entity. A public entity covered by title II is defined
as

\-

1\) Any State or local government;

2\) Any department, agency, special purpose district, or other

instrumentality of a State or local government; or

3\) Certain commuter authorities as well as AMTRAK.

As defined, the term \"public entity\" does not include the Federal

Government. Title II, therefore, does not apply to the Federal
Government,

which is covered by sections 501 and 504 of the Rehabilitation Act of
1973.

Title II is intended to apply to all programs, activities, and

services provided or operated by State and local governments. Currently,

section 504 of the Rehabilitation Act only applies to programs or

activities receiving Federal financial assistance. Because many State
and

local government operations, such as courts, licensing, and legislative

facilities and proceedings do not receive Federal funds, they are beyond

the reach of section 504.

1

II-1.3000 Relationship to title III. Public entities are not subject to

title III of the ADA, which covers only private entities. Conversely,

private entities are not subject to title II. In many situations.
however.

public entities have a close relationship to private entities that are

covered by title III, with the result that certain activities may be at

least indirectly affected by both titles.

ILLUSTRATION 1: A privately owned restaurant in a State park operates

for the convenience of park users under a concession agreement with a

State department of parks. As a public accommodation, the restaurant

is subject to title II and must meet those obligations. The State

department of parks, a public entity, is subject to title II. The

parks department is obligated to ensure by contract that the

restaurant is operated in a manner that enables the parks department

to meet its title II obligations. even though the restaurant is not

directly subject to title II.

ILLUSTRATION 2: A city owns a downtown office building occupied by its

department of human resources. The building\'s first floor, however, is

leased to a restaurant, a newsstand, and a travel agency. The city, as

a public entity and landlord of the office building, is subject to

title II. As a public entity, it is not subject to title III, even

though its tenants are public accommodations that are covered by title

III\.

ILLUSTRATION 3: A city engages in a joint venture with a private

corporation to build a new professional sports stadium. Where public

and private entities act jointly, the public entity must ensure that

the relevant requirements of title II are met; and the private entity

must ensure compliance with title III. Consequently, the new stadium

would have to be built in compliance with the accessibility guidelines

of both titles II and III. In cases where the standards differ, the

stadium would have to meet the standard that provides the highest

degree of access to individuals with disabilities.

II-1.4000 Relationship to other laws

II-1.4100 Rehabilitation Act. Title II provides protections to
individuals

with disabilities that are at least equal to those provided by the

nondiscrimination provisions of title V of the Rehabilitation Act. Title
V

includes such provisions as section 501, which prohibits discrimination
on

the basis of disability in Federal employment; section 503, which
addresses

the employment practices of Federal contractors; and section 504, which

covers all programs receiving Federal financial assistance and all the

operations of Federal Executive agencies. Title II may not be
interpreted

to provide a lesser degree of protection to individuals with
disabilities

than is provided under these laws.

II-1.4200 Other Federal and State laws. Title II does not disturb other

Federal laws or any State laws that provide protection for individuals
with

disabilities at a level greater or equal to that provided by the ADA. It

does, however, prevail over any conflicting State laws.

2

II-2.0000 QUALIFIED INDIVIDUALS WITH DISABILITIES

Regulatory references: 28 CFR 35.104.

II-2.1000 General. Title II of the ADA prohibits discrimination against

any \"qualified individual with a disability. Whether a particular

individual is protected by title Il requires a careful analysis first,
of

whether an individual is an \"individual with a disability,\" and then

whether that individual is \"qualified.\"

People commonly refer to disabilities or disabling conditions in a

broad sense. For example, poverty or lack of education may impose real

limitations on an individual\'s opportunities. Likewise, being only five

feet in height may prove to be an insurmountable barrier to an
individual

whose ambition is to play professional basketball. Although one might

loosely characterize these conditions as \"disabilities\" in relation to
the

aspirations of the particular individual, the disabilities reached by
title

II are limited to those that meet the ADA\'s legal definition those that

place substantial limitations on an individual\'s major life activities.

Title II protects three categories of individuals with disabilities:

1\) Individuals who have a physical or mental impairment that

substantially limits one or more major life activities;

2\) Individuals who have a record of a physical or mental impairment

that substantially limited one or more of the individual\'s major

life activities; and

3\) Individuals who are regarded as having such an impairment,

whether they have the impairment or not.

II-2.2000 Physical or mental impairments. The first category of persons

covered by the definition of an individual with a disability is
restricted

to those with \"physical or mental impairments.\" Physical impairments

include -

1\) Physiological disorders or conditions;

2\) Cosmetic disfigurement; or

3\) Anatomical loss

affecting one or more of the following body systems: neurological;

musculoskeletal; special sense organs (which would include speech organs

that are not respiratory such as vocal cords, soft palate, tongue,
etc.);

respiratory, including speech organs; cardiovascular; reproductive;

digestive; genito-urinary; hemic and lymphatic; skin; and endocrine.

Specific examples of physical impairments include orthopedic, visual,

speech, and hearing impairments, cerebral palsy, epilepsy, muscular

dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV
disease

(symptomatic or asymptomatic), tuberculosis, drug addiction, and

alcoholism.

3

Mental impairments include mental or psychological disorders, such as

mental retardation, organic brain syndrome, emotional or mental illness,

and specific learning disabilities.

Simple physical characteristics such as the color of one\'s eyes, hair,

or skin; baldness; lefthandedness; or age do not constitute physical

impairments. Similarly, disadvantages attributable to environmental,

cultural, or economic factors are not the type of impairments covered by

title II. Moreover, the definition does not include common personality

traits such as poor judgment or a quick temper, where these are not

symptoms of a mental or psychological disorder.

Does title II prohibit discrimination against individuals based on

their sexual orientation? No. The phrase \"physical or mental
impairment\"

does not include homosexuality or bisexuality.

II-2.3000 Drug addiction as an impairment. Drug addiction is an
impairment

under the ADA. A public entity, however, may base a decision to withhold

services or benefits in most cases on the fact that an addict is engaged
in

the current and illegal use of drugs.

What is \"illegal use of drugs\"? Illegal use of drugs means the use of

one or more drugs, the possession or distribution of which is unlawful

under the Controlled Substances Act. It does not include use of
controlled

substances pursuant to a valid prescription, or other uses that are

authorized by the Controlled Substances Act or other Federal law.
Alcohol

is not a \"controlled substance,\" but alcoholism is a disability.

What is \"current use\"? \"Current use\" is the illegal use of
controlled

substances that occurred recently enough to justify a reasonable belief

that a person\'s drug use is current or that continuing use is a real
and

ongoing problem. A public entity should review carefully all the facts

surrounding its belief that an individual is currently taking illegal
drugs

to ensure that its belief is a reasonable one.

Does title II protect drug addicts who no longer take controlled

substances? Yes. Title II prohibits discrimination against drug addicts

based solely on the fact that they previously illegally used controlled

substances. Protected individuals include persons who have successfully

completed a supervised drug rehabilitation program or have otherwise
been

rehabilitated successfully and who are not engaging in current illegal
use

of drugs. Additionally, discrimination is prohibited against an
individual

who is currently participating in a supervised rehabilitation program
and

is not engaging in current illegal use of drugs. Finally, a person who
is

erroneously regarded as engaging in current illegal use of drugs is

protected.

Is drug testing permitted under the ADA? Yes. Public entities may

utilize reasonable policies or procedures, including but not limited to

drug testing, designed to ensure that an individual who formerly engaged
in

the illegal use of drugs is not now engaging in current illegal use of

drugs.

4

II-2.4000 Substantial limitation of a major life activity. To constitute
a

\"disability,\" a condition must substantially limit a major life
activity.

Major life activities include such activities as caring for one\'s self,

performing manual tasks, walking, seeing, hearing, speaking, breathing,

learning, and working.

When does an impairment \"substantially limit\" a major life activity?

There is no absolute standard for determining when an impairment is a

substantial limitation. Some impairments obviously or by their nature

substantially limit the ability of an individual to engage in a major
life

activity.

ILLUSTRATION 1: A person who is deaf is substantially limited in the

major life activity of hearing. A person with a minor hearing

impairment, on the other hand, may not be substantially limited.

ILLUSTRATION 2: A person with traumatic brain injury may be

substantially limited in the major life activities of caring for one\'s

self, learning, and working because of memory deficit, confusion,

contextual difficulties, and inability to reason appropriately.

An impairment substantially interferes with the accomplishment of a

major life activity when the individual\'s important life activities are

restricted as to the conditions, manner, or duration under which they
can

be performed in comparison to most people.

ILLUSTRATION 1: A person with a minor vision impairment, such as 20/40

vision, does not have a substantial impairment of the major life

activity of seeing.

ILLUSTRATION 2: A person who can walk for 10 miles continuously is not

substantially limited in walking merely because, on the eleventh mile,

he or she begins to experience pain, because most people would not be

able to walk eleven miles without experiencing some discomfort.

Are \"temporary\" mental or physical impairments covered by title II?

Yes, if the impairment substantially limits a major life activity. The

issue of whether a temporary impairment is significant enough to be a

disability must be resolved on a case-by-case basis, taking into

consideration both the duration (or expected duration) of the impairment

and the extent to which it actually limits a major life activity of the

affected individual.

ILLUSTRATION: During a house fire, M received burns affecting his

hands and arms. While it is expected that, with treatment, M will

eventually recover full use of his hands, in the meantime he requires

assistance in performing basic tasks required to care for himself such

as eating and dressing. Because M\'s burns are expected to

substantially limit a major life activity (caring for one\'s self) for

a significant period of time, M would be considered to have a

disability covered by title II.

5

If a person\'s impairment is greatly lessened or eliminated through the

use of aids or devices, would the person still be considered an
individual

with a disability? Whether a person has a disability is assessed without

regard to the availability of mitigating measures, such as reasonable

modifications, auxiliary aids and services, services and devices of a

personal nature, or medication. For example, a person with severe
hearing

loss is substantially limited in the major life activity of hearing,
even

though the loss may be improved through the use of a hearing aid.
Likewise,

persons with impairments, such as epilepsy or diabetes, that, if
untreated,

would substantially limit a major life activity, are still individuals
with

disabilities under the ADA, even if the debilitating consequences of the

impairment are controlled by medication.

II-2.5000 Record of a physical or mental impairment that substantially

limited a major life activity. The ADA protects not only those
individuals

with disabilities who actually have a physical or mental impairment that

substantially limits a major life activity. but also those with a record
of

such an impairment. This protected group includes -

1\) A person who has a history of an impairment that substantially

limited a major life activity but who has recovered from the

impairment. Examples of individuals who have a history of an

impairment are persons who have histories of mental or emotional

illness, drug addiction, alcoholism. heart disease, or cancer.

2\) Persons who have been misclassified as having an impairment.

Examples include persons who have been erroneously diagnosed as

mentally retarded or mentally ill.

II-2.6000 \"Regarded as.\" The ADA also protects certain persons who are

regarded by a public entity as having a physical or mental impairment
that

substantially limits a major life activity, whether or not that person

actually has an impairment. Three typical situations are covered by this

category:

1\) An individual who has a physical or mental impairment that does

not substantially limit major life activities, but who is treated

as if the impairment does substantially limit a major life

activity;

ILLUSTRATION: A, an individual with mild diabetes controlled by

medication, is barred by the staff of a county-sponsored summer camp

from participation in certain sports because of her diabetes. Even

though A does not actually have an impairment that substantially

limits a major life activity, she is protected under the ADA because

she is treated as though she does.

2\) An individual who has a physical or mental impairment that

substantially limits major life activities only as a result of

the attitudes of others towards the impairment;

ILLUSTRATION: B, a three-year old child born with a prominent facial

disfigurement, has been refused admittance to a county-run day care

6

program on the grounds that her presence in the program might upset

the other children. B is an individual with a physical impairment that

substantially limits her major life activities only as the result of

the attitudes of others toward her impairment.

3\) An individual who has no impairments but who is treated by a

public entity as having an impairment that substantially limits a

major life activity.

ILLUSTRATION: C is excluded from a county-sponsored soccer team

because the coach believes rumors that C is infected with the HIV

virus. Even though these rumors are untrue. C is protected under the

ADA, because he is being subjected to discrimination by the county

based on the belief that he has an impairment that substantially

limits major life activities (i.e., the belief that he is infected

with HIV).

II-2.7000 Exclusions. The following conditions are specifically excluded

from the definition of \"disability\": transvestism, transsexualism,

pedophilia, exhibitionism, voyeurism, gender identity disorders not

resulting from physical impairments, other sexual behavior disorders,

compulsive gambling, kleptomania, pyromania, and psychoactive substance
use

disorders resulting from current illegal use of drugs.

II-2.8000 Qualified individual with a disability. In order to be an

individual protected by title II, the individual must be a \"qualified\"

individual with a disability. To be qualified, the individual with a

disability must meet the essential eligibility requirements for receipt
of

services or participation in a public entity\'s programs, activities, or

services with or without -

1\) Reasonable modifications to a public entity\'s rules, policies, or

practices;

2\) Removal of architectural, communication, or transportation

barriers; or

3\) Provision of auxiliary aids and services.

The \"essential eligibility requirements\" for participation in many

activities of public entities may be minimal. For example, most public

entities provide information about their programs, activities, and
services

upon request. In such situations, the only \"eligibility requirement\"
for

receipt of such information would be the request for it. However, under

other circumstances, the \"essential eligibility requirements\" imposed
by a

public entity may be quite stringent.

ILLUSTRATION: The medical school at a public university may require

those admitted to its program to have successfully completed specified

undergraduate science courses.

7

Can health and safety factors be taken into account in determining who

is qualified? Yes. An individual who poses a direct threat to the health
or

safety of others will not be \"qualified.\"

What is a \"direct threat\"? A \"direct threat\" is a significant risk
to

the health or safety of others that cannot be eliminated or reduced to
an

acceptable level by the public entity\'s modification of its policies,

practices or procedures, or by the provision of auxiliary aids or
services.

The public entity\'s determination that a person poses a direct threat
to

the health or safety of others may not be based on generalizations or

stereotypes about the effects of a particular disability.

How does one determine whether a direct threat exists? The

determination must be based on an individualized assessment that relies
on

current medical evidence, or on the best available objective evidence,
to

assess -

1\) The nature, duration, and severity of the risk;

2\) The probability that the potential injury will actually occur;

and,

3\) Whether reasonable modifications of policies, practices, or

procedures will mitigate or eliminate the risk.

Making this assessment will not usually require the services of a

physician. Medical guidance may be obtained from public health
authorities,

such as the U.S. Public Health Service, the Centers for Disease Control,

and the National Institutes of Health, including the National Institute
of

Mental Health.

ILLUSTRATION: An adult individual with tuberculosis wishes to tutor

elementary school children in a volunteer mentor program operated by a

local public school board. Title II permits the board to refuse to

allow the individual to participate on the grounds that the mentor\'s

condition would be a direct threat to the health or safety of the

children participating in the program, if the condition is contagious

and the threat cannot be mitigated or eliminated by reasonable

modifications in policies, practices or procedures.

8

II-3.0000 GENERAL REQUIREMENTS

Regulatory References: 28 CFR 35.130-35.135.

II-3.1000 General. Most requirements of title II are based on section
504

of the Rehabilitation Act of 1973 which prohibits discrimination on the

basis of handicap in federally assisted programs and activities. Section

504 also applies to programs and activities \"conducted\" by Federal

Executive agencies. The ADA similarly extends section 504\'s

nondiscrimination requirement to all activities of\' State and local

governments, not only those that receive Federal financial assistance.

Section 504 was implemented in 1977 for federally assisted programs in

regulations issued by the Department of Health, Education, and Welfare.

Later, other Federal agencies issued their own regulations for the
programs

and activities that they funded. Public entities should be familiar with

those regulations from their experience in applying for Federal grant

programs. As mandated by the ADA, the requirements for public entities

under title II are consistent with and, in many areas, identical to the

requirements of the section 504 regulations.

The ADA, however, also mandates that the title II regulations be

consistent with the concepts of the ADA. Therefore, the title II

regulations include language that is adapted from other parts of the ADA

but not specifically found in section 504 regulations.

II-3.2000 Denial of participation. The ADA, like other civil rights

statutes, prohibits the denial of services or benefits on specified

discriminatory grounds. Just as a government office cannot refuse to
issue

food stamps or other benefits to an individual on the basis of his or
her

race, it cannot refuse to provide benefits solely because an individual
has

a disability.

ILLUSTRATION: A city cannot refuse to admit an individual to a city

council meeting that is open to the public merely because the

individual is deaf.

II-3.3000 Equality in participation/benefits. The ADA provides for
equality

of opportunity, but does not guarantee equality of results. The
foundation

of many of the specific requirements in the Department\'s regulations is
the

principle that individuals with disabilities must be provided an equally

effective opportunity to participate in or benefit from a public
entity\'s

aids, benefits, and services.

ILLUSTRATION 1: A deaf individual does not receive an equal

opportunity to benefit from attending a city council meeting if he or

she does not have access to what is said.

ILLUSTRATION 2: An individual who uses a wheelchair will not have an

equal opportunity to participate in a program if applications must be

filed in a second-floor office of a building without an elevator,

because he or she would not be able to reach the office.

9

ILLUSTRATION 3: Use of printed information alone is not \"equally

effective\" for individuals with vision impairments who cannot read

written material.

Specific requirements for physical access to programs and

communications are discussed in detail below, but the general principle

underlying these obligations is the mandate for an equal opportunity to

participate in and benefit from a public entity\'s services, programs,
and

activities.

II-3.4000 Separate benefit/integrated setting. A primary goal of the ADA

is the equal participation of individuals with disabilities in the

\"mainstream\" of American society. The major principles of
mainstreaming are

1\) Individuals with disabilities must be integrated to the maximum

extent appropriate.

2\) Separate programs are permitted where necessary to ensure equal

opportunity. A separate program must be appropriate to the

particular individual.

3\) Individuals with disabilities cannot be excluded from the regular

program, or required to accept special services or benefits.

II-3.4100 Separate programs. A public entity may offer separate or
special

programs when necessary to provide individuals with disabilities an
equal

opportunity to benefit from the programs. Such programs must, however,
be

specifically designed to meet the needs of the individuals with

disabilities for whom they are provided.

ILLUSTRATION 1: Museums generally do not allow visitors to touch

exhibits because handling can cause damage to the objects. A municipal

museum may offer a special tour for individuals with vision

impairments on which they are permitted to touch and handle specific

objects on a limited basis. (It cannot, however, exclude a blind

person from the standard museum tour.)

ILLUSTRATION 2: A city recreation department may sponsor a separate

basketball league for individuals who use wheelchairs.

II-3.4200 Relationship to \"program accessibility\" requirement. The

integrated setting requirement may conflict with the obligation to
provide

program accessibility which may not necessarily mandate physical access
to

all parts of all facilities (see II-5.0000). Provision of services to

individuals with disabilities in a different location, for example is
one

method of achieving program accessibility. Public entities should make

every effort to ensure that alternative methods of providing program
access

do not result in unnecessary segregation.

ILLUSTRATION: A school system should provide for wheelchair access at

schools dispersed throughout its service area so that children who use

wheelchairs can attend school at locations comparable in convenience

10

to those available to other children. Also, where \"magnet\" schools, or

schools offering different curricula or instruction techniques are

available, the range of choice provided to students with disabilities

must be comparable to that offered to other students.

11-3.4300 Right to participate in the regular program. Even if a
separate

or special program \[or individuals with disabilities is offered, a
public

entity cannot deny a qualified individual with a disability
participation

in its regular program.

Qualified individuals with disabilities are entitled to participate in

regular programs, even if the public entity could reasonably believe
that

they cannot benefit from the regular program.

ILLUSTRATION: A museum cannot exclude a person who is blind from a

tour because of assumptions about his or her inability to appreciate

and benefit from the tour experience. Similarly. a deaf person may not

be excluded from a museum concert because of a belief that deaf

persons cannot enjoy the music.

The fact that a public entity offers special programs does not affect

the right of an individual with a disability to participate in regular

programs. The requirements for providing access to the regular program.

including the requirement that the individual be \"qualified\" for the

program, still apply.

ILLUSTRATION: Where a State offers special drivers\' licenses with

limitations or restrictions for individuals with disabilities, an

individual with a disability is not eligible for an unrestricted

license, unless he or she meets the essential eligibility requirements

for the unrestricted license.

BUT: If an individual is qualified for the regular program, he or she

cannot be excluded from that program simply because a special program

is available.

Individuals with disabilities may not be required to accept special

\"benefits\" if they choose not to do so.

ILLUSTRATION: A State that provides optional special automobile

license plates for individuals with disabilities and requires

appropriate documentation for eligibility for the special plates

cannot require an individual who qualifies for a special plate to

present documentation or accept a special plate, if he or she applies

for a plate without the special designation.

11-3.4400 Modifications in the regular program. When a public entity

offers a special program for individuals with a particular disability,
but

an individual with that disability elects to participate in the regular

program rather than in the separate program, the public entity may still

have obligations to provide an opportunity for that individual to
benefit

from the regular program. The fact that a separate program is offered
may

11

be a factor in determining the extent of the obligations under the
regular

program, but only if the separate program is appropriate to the needs of

the particular individual with a disability.

ILLUSTRATION: If a museum provides a sign language interpreter for

one of its regularly scheduled tours, the availability of the signed

tour may be a factor in determining whether it would be an undue

burden to provide an interpreter for a deaf person who wants to take

the tour at a different time.

BUT: The availability of the signed tour would not affect the

museum\'s obligation to provide an interpreter for a different tour, or

the museum\'s obligation to provide a different auxiliary aid, such as

an assistive listening device, for an individual with impaired hearing

who does not use sign language.

II-3.5000 Eligibility criteria

II-3.5100 General. A public entity may not impose eligibility criteria

for participation in its programs, services, or activities that either

screen out or tend to screen out persons with disabilities, unless it
can

show that such requirements are necessary for the provision of the
service,

program, or activity.

ILLUSTRATION 1: The director of a county recreation program prohibits

persons who use wheelchairs from participating in county-sponsored

scuba diving classes because he believes that persons who use

wheelchairs probably cannot swim well enough to participate. An

unnecessary blanket exclusion of this nature would violate the ADA.

ILLUSTRATION 2: A community college requires students with certain

disabilities to be accompanied to class by attendants, even when such

individuals prefer to attend classes unaccompanied. The college also

requires individuals with disabilities to provide extensive medical

histories, although such histories are not required from other

students. Unless the college can demonstrate that it is necessary for

some compelling reason to adopt these policies, the policies would not

be permitted by the ADA.

II-3.5200 Safety. A public entity may impose legitimate safety

requirements necessary for the safe operation of its services, programs,
or

activities. However, the public entity must ensure that its safety

requirements are based on real risks, not on speculation, stereotypes,
or

generalizations about individuals with disabilities.

ILLUSTRATION: A county recreation program may require that all

participants in its scuba program pass a swimming test, if it can

demonstrate that being able to swim is necessary for safe

participation in the class. This is permitted even if requiring such a

test would tend to screen out people with certain kinds of

disabilities.

12

II-3.5300 Unnecessary inquiries. A public entity may not make
unnecessary

inquiries into the existence of a disability.

ILLUSTRATION: A municipal recreation department summer camp requires

parents to fill out a questionnaire and to submit medical

documentation regarding their children\'s ability to participate in

various camp activities. The questionnaire is acceptable, if the

recreation department can demonstrate that each piece of information

requested is needed to ensure safe participation in camp activities.

The Department, however, may not use this information to screen out

children with disabilities from admittance to the camp.

II-3.5400 Surcharges. Although compliance may result in some additional

cost, a public entity may not place a surcharge only on particular

individuals with disabilities or groups of individuals with disabilities
to

cover these expenses.

ILLUSTRATION: A community college provides interpreter services to

deaf students, removes a limited number of architectural barriers, and

relocates inaccessible courses and activities to more accessible

locations. The college cannot place a surcharge on either an

individual student with a disability (such as a deaf student who

benefited from interpreter services) or on groups of students with

disabilities (such as students with mobility impairments who benefited

from barrier removal). It may, however, adjust its tuition or fees for

all students.

II-3.6000 Reasonable modifications

II-3.6100 General. A public entity must reasonably modify its policies,

practices, or procedures to avoid discrimination. If the public entity
can

demonstrate, however, that the modifications would fundamentally alter
the

nature of its service, program, or activity, it is not required to make
the

modification.

ILLUSTRATION 1: A municipal zoning ordinance requires a set-back of 12

feet from the curb in the central business district. In order to

install a ramp to the front entrance of a pharmacy, the owner must

encroach on the set-back by three feet. Granting a variance in the

zoning requirement may be a reasonable modification of town policy.

ILLUSTRATION 2: A county general relief program provides emergency

food, shelter, and cash grants to individuals who can demonstrate

their eligibility. The application process, however, is extremely

lengthy and complex. When many individuals with mental disabilities

apply for benefits, they are unable to complete the application

process successfully. As a result, they are effectively denied

benefits to which they are otherwise entitled. In this case, the

county has an obligation to make reasonable modifications to its

application process to ensure that otherwise eligible individuals are

not denied needed benefits. Modifications to the relief program might

13

include simplifying the application process or providing applicants

who have mental disabilities with individualized assistance to

complete the process.

II-3.6200 Personal services and devices. A public entity is not required
to

provide individuals with disabilities with personal or individually

prescribed devices, such as wheelchairs, prescription eyeglasses, or

hearing aids, or to provide services of a personal nature, such as

assistance in eating, toileting, or dressing. Of course, if personal

services or devices are customarily provided to the individuals served
by a

public entity, such as a hospital or nursing home, then these personal

services should also be provided to individuals with disabilities.

II-3.7000 Contracting and licensing

II-3.7100 Contracting. A public entity may not discriminate on the basis

of disability in contracting for the purchase of goods and services.

ILLUSTRATION 1: A municipal government may not refuse to contract with

a cleaning service company to clean its government buildings because

the company is owned by an individual with disabilities or employs

individuals with disabilities.

II-3.7200 Licensing. A public entity may not discriminate on the basis
of

disability in its licensing, certification, and regulatory activities. A

person is a \"qualified individual with a disability\" with respect to

licensing or certification, if he or she can meet the essential
eligibility

requirements for receiving the license or certification.

The phrase \"essential eligibility requirements\" is particularly

important in the context of State licensing requirements. While many

programs and activities of public entities do not have significant

qualification requirements, licensing programs often do require
applicants

to demonstrate specific skills, knowledge, and abilities. Public
entities

may not discriminate against qualified individuals with disabilities who

apply for licenses, but may consider factors related to the disability
in

determining whether the individual is \"qualified.\"

ILLUSTRATION: An individual is not \"qualified\" for a driver\'s license

unless he or she can operate a motor vehicle safely. A public entity

may establish requirements, such as vision requirements, that would

exclude some individuals with disabilities, if those requirements are

essential for the safe operation of a motor vehicle.

BUT: The public entity may only adopt \"essential\" requirements for

safe operation of a motor vehicle. Denying a license to all

individuals who have missing limbs, for example, would be

discriminatory if an individual who could operate a vehicle safely

without use of the missing limb were denied a license. A public

entity, however, could impose appropriate restrictions as a condition

to obtaining a license, such as requiring an individual who is unable

to use foot controls to use hand controls when operating a vehicle.

14

A public entity does not have to lower or eliminate licensing

standards that are essential to the licensed activity to accommodate an

individual with a disability. Whether a specific requirement is
\"essential\"

will depend on the facts of the particular case. Where a public entity

administers licensing examinations. it must provide auxiliary aids for

applicants with disabilities and administer the examinations in
accessible

locations.

In addition. a public entity may not establish requirements for the

programs or activities of licensees that would result in discrimination

against qualified individuals with disabilities. For example, a public

entity\'s safety standards may not require the licensee to discriminate

against qualified individuals with disabilities in its employment

practices.

ILLUSTRATION: A State prohibits the licensing of transportation

companies that employ individuals with missing limbs as drivers. XYZ

company refuses to hire an individual with a missing limb who is

\"qualified\" to perform the essential functions of the job, because he

is able to drive safely with hand controls. The State\'s licensing

requirements violate title 11.

BUT: The State is not accountable for discrimination in the

employment or other practices of XYZ company, if those practices are

not the result of requirements or policies established by the State.

Although licensing standards are covered by title II, the licensee\'s

activities themselves are not covered. An activity does not become a

\"program or activity\" of a public entity merely because it is licensed
by

the public entity.

II-3.8000 Illegal use of drugs. Discrimination based on an individual\'s

current illegal use of drugs is not prohibited (see II-2.3000). Although

individuals currently using illegal drugs are not protected from

discrimination, the ADA does prohibit denial of health services, or

services provided in connection with drug rehabilitation. to an
individual

on the basis of current illegal use of drugs, if the individual is

otherwise entitled to such services.

ILLUSTRATION 1: A hospital emergency room may not refuse to provide

emergency services to an individual because the individual is using

drugs.

ILLUSTRATION 2: A municipal medical facility that specializes in care

of burn patients may not refuse to treat an individual\'s burns on the

grounds that the individual is illegally using drugs.

Because abstention from the use of drugs is an essential condition for

participation in some drug rehabilitation programs, and may be a
necessary

requirement in inpatient or residential settings, a drug rehabilitation
or

treatment program may deny participation to individuals who use drugs
while

they are in the program.

15

ILLUSTRATION: A residential drug and alcohol treatment program may

expel an individual for using drugs in a treatment center.

II-3.9000 Discrimination on the basis of association. A State or local

government may not discriminate against individuals or entities because
of

their known relationship or association with persons who have
disabilities.

This prohibition applies to cases where the public entity has knowledge
of

both the individual\'s disability and his or her relationship to another

individual or entity. In addition to familial relationships, the

prohibition covers any type of association between the individual or
entity

that is discriminated against and the individual or individuals with

disabilities, if the discrimination is actually based on the disability.

ILLUSTRATION 1: A county recreation center may not refuse admission

to a summer camp program to a child whose brother has HIV disease.

ILLUSTRATION 2: A local government could not refuse to allow a theater

company to use a school auditorium on the grounds that the company has

recently performed at an HIV hospice.

ILLUSTRATION 3: If a county-owned sports arena refuses to admit G, an

individual with cerebral palsy, as well as H (his sister) because G

has cerebral palsy, the arena would be illegally discriminating

against H on the basis of her association with G.

II-3.10000 Maintenance of accessible features. Public entities must

maintain in working order equipment and features of facilities that are

required to provide ready access to individuals with disabilities.
Isolated

or temporary interruptions in access due to maintenance and repair of

accessible features are not prohibited.

Where a public entity must provide an accessible route, the route must

remain accessible and not blocked by obstacles such as furniture, filing

cabinets. or potted plants. An isolated instance of placement of an
object

on an accessible route, however, would not be a violation, if the object
is

promptly removed. Similarly, accessible doors must be unlocked when the

public entity is open for business.

Mechanical failures in equipment such as elevators or automatic doors

will occur from time to time. The obligation to ensure that facilities
are

readily accessible to and usable by individuals with disabilities could
be

violated. if repairs are not made promptly or if improper or inadequate

maintenance causes repeated and persistent failures.

ILLUSTRATION 1: It would be a violation for a building manager of a

three-story building to turn off the only passenger elevator in order

to save energy during the hours when the building is open.

ILLUSTRATION 2: A public high school has a lift to provide access for

persons with mobility impairments to an auditorium stage. The lift is

not working. If the lift normally is functional and reasonable steps

have been taken to repair the lift, then the school has not violated

16

its obligations to maintain accessible features. On the other hand, if

the lift frequently does not work and reasonable steps have not been

taken to maintain the lift, then the school has violated the

maintenance of accessible features requirement.

ILLUSTRATION 3: Because of lack of space. a city office manager places

tables and file cabinets in the hallways, which interferes with the

usability of the hallway by individuals who use wheelchairs. By

rendering a previously accessible hallway inaccessible. the city has

violated the maintenance requirement, if that hallway is part of a

required accessible route.

II-3.11000 Retaliation or coercion. Individuals who exercise their
rights

under the ADA. or assist others in exercising their rights, are
protected

from retaliation. The prohibition against retaliation or coercion
applies

broadly to any individual or entity that seeks to prevent an individual

from exercising his or her rights or to retaliate against him or her for

having exercised those rights. Any form of retaliation or coercion,

including threats, intimidation, or interference, is prohibited if it

interferes with the exercise of rights under the Act.

ILLUSTRATION 1: A, a private individual, harasses X, an individual

with cerebral palsy, in an effort to prevent X from attending a

concert in a State park. A has violated the ADA.

ILLUSTRATION 2: A State tax official delays a tax refund for M,

because M testified in a title II grievance proceeding involving the

inaccessibility of the tax information office. The State has illegally

retaliated against M in violation of title II.

II-3.12000 Smoking. A public entity may prohibit smoking, or may impose

restrictions on smoking, in its facilities.

17

II-4.0000 EMPLOYMENT

Regulatory References: 28 CFR 35.140.

II-4.1000 General. Beginning January 26, 1992, title II prohibits all

public entities, regardless of size of workforce, from discriminating in

their employment practices against qualified individuals with
disabilities.

II-4.2000 Relationship among title 11 and other Federal laws that
prohibit

employment discrimination by public entities on the basis of disability.
In

addition to title Il\'s employment coverage, title I of the ADA and
section

504 of the Rehabilitation Act of 1973 prohibit employment discrimination

against qualified individuals with disabilities by certain public
entities.

Title I of the ADA, which is primarily enforced by the Equal

Employment Opportunity Commission (EEOC), prohibits job discrimination -

1\) Effective July 26, 1992, by State and local employers with 25 or

more employees; and

2\) Effective July 26, 1994, by State and local employers with 15 or

more employees.

Section 504 of the Rehabilitation Act prohibits discrimination in

employment in programs or activities that receive Federal financial

assistance, including federalIy funded State or local programs or

activities. Each Federal agency that extends financial assistance is

responsible for enforcement of section 504 in the programs it funds.

What standards are used to determine compliance under title II? For

those public entities that are subject to title I of the ADA, title II

adopts the standards of title I. In all other cases, the section 504

standards for employment apply.

II-4.3000 Basic employment requirements. The following sections set
forth

examples of basic title II employment requirements that are common to
both

title I and section 504. Because the language of title I was modeled on
the

section 504 regulations, the standards of title I and section 504 are on

most issues identical. Additional information on employment issues is

available in \"A Technical Assistance Manual on the Employment
Provisions

(Title I) of the Americans with Disabilities Act,\" issued by the EEOC.
(For

information about obtaining this document or other information about
title

I, contact the EEOC at 800-669-EEOC (voice) or 800-800-3302 (TDD)).

II-4.3100 Nondiscriminatory practices and policies. As of January 26,

1992, all public entities must ensure that their employment practices
and

policies do not discriminate on the basis of disability against
qualified

individuals with disabilities in every aspect of employment, including

recruitment, hiring, promotion, demotion, layoff and return from layoff,

compensation, job assignments, job classifications, paid or unpaid
leave,

fringe benefits, training, and employer-sponsored activities, including

recreational or social programs.

17

II-4.3200 Reasonable accommodation. All public entities must make

\"reasonable accommodation\" to the known physical or mental limitations
of

otherwise qualified applicants or employees with disabilities, unless
the

public entity can show that the accommodation would impose an \"undue

hardship\" on the operation of its program.

\"Reasonable accommodation\" means any change or adjustment to a job or

work environment that permits a qualified applicant or employee with a

disability to participate in the job application process, to perform the

essential functions of a job, or to enjoy benefits and privileges of

employment equal to those enjoyed by employees without disabilities.

Examples include -

1\) Acquiring or modifying equipment or devices;

2\) Job restructuring;

3\) Part-time or modified work schedules;

4\) Providing readers or interpreters;

5\) Making the workplace accessible to and usable by individuals with

disabilities.

However, any particular change or adjustment would not be required if,

under the circumstances involved, it would result in an undue hardship.

\"Undue hardship\" means significant difficulty or expense relative to

the operation of a public entity\'s program. Where a particular

accommodation would result in an undue hardship, the public entity must

determine if another accommodation is available that would not result in
an

undue hardship.

II-4.3300 Nondiscrimination in selection criteria and the administration

of tests. Public entities may not use employment selection criteria that

have the effect of subjecting individuals with disabilities to

discrimination. In addition, public entities are required to ensure
that,

where necessary to avoid discrimination, employment tests are modified
so

that the test results reflect job skills or aptitude or whatever the
test

purports to measure, rather than the applicant\'s or employee\'s
hearing,

visual, speaking or manual skills (unless the test is designed to
measure

hearing, visual, speaking, or manual skills).

II-4.34OO Preemployment medical examinations and medical inquiries.
During

the hiring process, public entities may ask about an applicant\'s
ability to

perform job-related functions but may not ask whether an applicant is

disabled or about the nature or severity of an applicant\'s disability.

Public entities may not conduct preemployment medical examinations,

but they may condition a job offer on the results of a medical
examination

conducted prior to an individual\'s entrance on duty if -

18

1\) All entering employees in the same job category, regardless of

disability, are required to take the same medical examination,

and

2\) The results of the medical examination are not used to

impermissibly discriminate on the basis of disability.

The results of a medical entrance examination must be kept

confidential and maintained in separate medical files.

II-5.0000 PROGRAM ACCESSIBILITY

Regulatory references: 28 CFR 35.149-35.150.

II-5.1000 General. A public entity may not deny the benefits of its

programs activities, and services to individuals with disabilities
because

its facilities are inaccessible. A public entity\'s services. programs,
or

activities, when viewed in their entirety must be readily accessible to
and

usable by individuals with disabilities. This standard, known as
\"program

accessibility,\" applies to all existing facilities of a public entity.

Public entities, however, are not necessarily required to make each of

their existing facilities accessible.

ILLUSTRATION 1: When a city holds a public meeting in an existing

building, it must provide ready access to, and use of, the meeting

facilities to individuals with disabilities. The city is not required

to make all areas in the building accessible, as long as the meeting

room is accessible. Accessible telephones and bathrooms should also be

provided where these services are available for use of meeting

attendees.

ILLUSTRATION 2: D, a defendant in a civil suit, has a respiratory

condition that prevents her from climbing steps. Civil suits are

routinely heard in a courtroom on the second floor of the courthouse.

The courthouse has no elevator or other means of access to the second

floor. The public entity must relocate the proceedings to an

accessible ground floor courtroom or take alternative steps, including

moving the proceedings to another building, in order to allow D to

participate in the civil suit.

ILLUSTRATION 3: A State provides ten rest areas approximately 50 miles

apart along an interstate highway. Program accessibility requires that

an accessible toilet room for each sex with at least one accessible

stall, or a unisex bathroom, be provided at each rest area.

Is a public entity relieved of its obligation to make its programs

accessible if no individual with a disability is known to live in a

particular area? No. The absence of individuals with disabilities living
in

an area cannot be used as the test of whether programs and activities
must

be accessible.

Can back doors and freight elevators be used to satisfy the program

accessibility requirement\'? Yes, but only as a last resort and only if
such

an arrangement provides accessibility comparable to that provided to

persons without disabilities, who generally use front doors and
passenger

elevators. For example, a back door is acceptable if it is kept unlocked

during the same hours the front door remains unlocked; the passageway to

and from the floor is accessible, well-lit, and neat and clean; and the

individual with a mobility impairment does not have to travel excessive

distances or through nonpublic areas such as kitchens and storerooms to

gain access. A freight elevator would be acceptable if it were upgraded
so

as to be usable by passengers generally and if the passageways leading
to

and from the elevator are well-lit and neat and clean.

19

Are there any limitations on the program accessibility requirement?

Yes. A public entity does not have to take any action that it can

demonstrate would result in a fundamental alteration in the nature of
its

program or activity or in undue financial and administrative burdens.
This

determination can only be made by the head of the public entity or his
or

her designee and must be accompanied by a written statement of the
reasons

for reaching that conclusion. The determination that undue burdens would

result must be based on all resources available for use in the program.
If

an action would result in such an alteration or such burdens, the public

entity must take any other action that would not result in such an

alteration or such burdens but would nevertheless ensure that
individuals

with disabilities receive the benefits and services of the program or

activity.

II-5.2000 Methods for providing program accessibility. Public entities
may

achieve program accessibility by a number of methods. In many
situations,

providing access to facilities through structural methods, such as

alteration of existing facilities and acquisition or construction of

additional facilities, may he the most efficient method of providing

program accessibility. The public entity may, however, pursue
alternatives

to structural changes in order to achieve program accessibility.

Nonstructural methods include acquisition or redesign of equipment,

assignment of aides to beneficiaries, and provision of services at

alternate accessible sites.

ILLUSTRATION 1: The office building housing a public welfare agency

may only be entered by climbing a flight of stairs. If an individual

with a mobility impairment seeks information about welfare benefits,

the agency can provide the information in an accessible ground floor

location or in another accessible building.

ILLUSTRATION 2: A public library\'s open stacks are located on upper

floors having no elevator. As an alternative to installing a lift or

elevator, library staff may retrieve books for patrons who use

wheelchairs. The aides must be available during the operating hours of

the library.

ILLUSTRATION 3: A public university that conducts a French course in

an inaccessible building may relocate the course to a building that is

readily accessible.

When choosing a method of providing program access, a public entity

must give priority to the one that results in the most integrated
setting

appropriate to encourage interaction among all users, including
individuals

with disabilities.

ILLUSTRATION: A rural, one-room library has an entrance with several

steps. The library can make its services accessible in several ways.

It may construct a simple wooden ramp quickly and at relatively low

cost. Alternatively, individuals with mobility impairments may be

provided access to the library\'s services through a bookmobile, by

20

special messenger service, through use of clerical aides, or by any

other method that makes the resources of the library \"readily

accessible.\" Priority should be given, however, to constructing a ramp

because that is the method that offers library services to individuals

with disabilities and others in the same setting.

Is carrying an individual with a disability considered an acceptable

method of achieving program access? Generally, it is not. Carrying
persons

with mobility impairments to provide program accessibility is permitted
in

only two cases. First, when program accessibility in existing facilities

can be achieved only through structural alterations (that is, physical

changes to the facilities,). carrying may serve as a temporary expedient

until construction is completed. Second, carrying is permitted in

manifestly exceptional cases if (a) carriers are formally instructed on
the

safest and least humiliating means of carrying and (b) the service is

provided in a reliable manner. Carrying is contrary to the goal of

providing accessible programs, which is to foster independence.

How is \"program accessibility\" under title II different than \"readily

achievable barrier removal\" under title III? Unlike private entities
under

title III, public entities are not required to remove barriers from each

facility, even if removal is readily achievable. A public entity must
make

its \"programs\" accessible. Physical changes to a building are required
only

when there is no other feasible way to make the program accessible.

In contrast, barriers must be removed from places of public

accommodation under title III where such removal is \"readily
achievable,\"

without regard to whether the public accommodation\'s services can be
made

accessible through other methods.

II-53000 Curb ramps. Public entities that have responsibility or
authority

over streets, roads, or walkways must prepare a schedule for providing
curb

ramps where pedestrian walkways cross curbs. Public entities must give

priority to walkways serving State and local government offices and

facilities, transportation places of public accommodation, and
employees,

followed by walkways serving other areas. This schedule must be included
as

part of a transition plan (see II-8.3000).

What are walkways? Pedestrian walkways include locations where access

is required for use of public transportation, such as bus stops that are

not located at intersections or crosswalks.

II-5.4000 Existing parking lots or garages. A public entity should
provide

an adequate number of, accessible parking spaces in existing parking
lots

or garages over which it has jurisdiction.

II-5.5000 Historic preservation programs. Special program accessibility

requirements and limitations apply to historic preservation programs.

Historic preservation programs are programs conducted by a public entity

that have preservation of historic properties as a primary purpose. An

historic property is a property that is listed or eligible for listing
in

the National Register of Historic Places or a property designated as

historic under State or local law.

21

In achieving program accessibility in historic preservation programs,

a public entity must give priority to methods that provide physical
access

to individuals with disabilities. Physical access is particularly
important

in an historic preservation program, because a primary benefit of the

program is uniquely the experience of the historic property itself.

Are there any special limitations on measures required to achieve

program accessibility in historic preservation programs in addition to
the

general fundamental alteration/undue financial and administrative
burdens

limitations? Yes, a public entity is not required to take any action
that

would threaten or destroy the historic significance of an historic

property. In cases where physical access cannot be provided because of

either this special limitation, or because an undue financial burden or

fundamental alteration would result, alternative measures to achieve

program accessibility must be undertaken.

ILLUSTRATION: Installing an elevator in an historic house museum to

provide access to the second floor bedrooms could destroy

architectural features of historic significance on the first floor.

Providing an audio-visual display of the contents of the upstairs

rooms in an accessible location on the first floor would be an

alternative way of achieving program accessibility.

Does the special limitation apply to programs that are not historic

preservation programs, but just happen to be located in historic

properties? No. In these cases, nonstructural methods of providing
program

accessibility, such as relocating all or part of a program or making
home

visits, are available to ensure accessibility, and no special limitation

protecting the historic structure is provided.

II-5.6000 Time periods for achieving program accessibility. Public

entities must achieve program accessibility by January 26, 1992. If

structural changes are needed to achieve program accessibility, they
must

be made as expeditiously as possible, but in no event later than January

26, 1995. This three-year time period is not a grace period; all changes

must be accomplished as expeditiously as possible. A public entity that

employs 50 or more persons must develop a transition plan by July 26,
1992,

setting forth the steps necessary to complete such changes. For guidance
on

transition plan requirements, see II-8.3000.

22

II-6.0000 NEW CONSTRUCTION AND ALTERATIONS,

Regulatory references: 28 CFR 35.151.

II-6.1000 General. All facilities designed, constructed, or altered by,
on

behalf of, or for the use of a public entity must be readily accessible
and

usable by individuals with disabilities, if the construction or
alteration

is begun after January 26, 1992.

What is \"readily accessible and usable?\" This means that the facility

must be designed, constructed, or altered in strict compliance with a

design standard. The regulation gives a choice of two standards that may
be

used (see II-6.2000).

II-6.2000 Choice of design standard: UFAS or ADAAG

II-6.2100 General. Public entities may choose from two design standards

for new construction and alterations. They can choose either the Uniform

Federal Accessibility Standards (UFAS) or the Americans with
Disabilities

Act Accessibility Guidelines for Buildings and Facilities (ADAAG), which
is

the standard that must be used for public accommodations and commercial

facilities under title III of the ADA. If ADAAG is chosen, however,
public

entities are not entitled to the elevator exemption (which permits
certain

buildings under three stories or under 3,000 square feet per floor to be

constructed without an elevator).

Many public entities that are recipients of Federal funds are already

subject to UFAS, which is the accessibility standard referenced in most

section 504 regulations.

Which standard is stricter, UFAS or ADAAG? The many differences

between the standards are highlighted below. In some areas, UFAS may
appear

to be more stringent. In other areas ADAAG may appear to be more
stringent.

Because of the many differences, one standard is not stricter than the

other.

Can a public entity follow ADAAG on one floor of a new building and

then follow UFAS on the next floor? No. Each facility or project must

follow one standard completely.

Can a public entity follow UFAS for one alteration project and then

follow ADAAG for another alteration project in the same building? No.
All

alterations in the same building must be done in accordance with the
same

standard.

II-6.3000 Major differences between ADAAG and UFAS. Set forth below is a

summary of some of the major differences between ADAAG and UFAS.

II-6.3100 General principles

1\) Work areas

23

ADAAG: Requires that areas used only by employees as work areas

be designed and constructed so that individuals with disabilities

can approach, enter, and exit the areas. There is, then, only a

limited application of the standards to work areas (Sec.

4.l.l(3)).

UFAS: Contains no special limited requirement for work areas.

The UFAS standards apply (as provided in the Architectural

Barriers Act) in all areas frequented by the public or which \"may

result in employment of physically handicapped persons\" (Sec. 1).

2\) Equivalent facilitation

ADAAG: Departures from particular standards are permitted where

alternatives will provide substantially equivalent or greater

access (§2.2).

UFAS: UFAS itself does not contain a statement concerning

equivalent facilitation. However, section 504 regulations, as

well as the Department\'s title II regulation (28 CFR 35.151(c)),

state that departures are permitted where it is \"clearly evident

that equivalent access\" is provided.

3\) Exemption from application of standards in new construction

ADAAG: Contains a structural impracticability exception for new

construction: full compliance with the new construction standards

is not required in the rare case where the terrain prevents

compliance (§4.1.1(5\](a)).

UFAS: Does not contain a structural impracticability exception

(or any other exception) for new construction.

4\) Exemption from application of standards in alterations

ADAAG: For alterations, application of standards is not required

where it would be \"technically infeasible\" (i.e., where

application of the standards would involve removal of a load-

bearing structural member or where existing physical or site

restraints prevent compliance). Cost is not a factor (§4.1.6(

1)(j)).

UFAS: Application of standards is not required for alterations

where \"structurally impracticable,\" i.e., where removal of a

load-bearing structural member is involved or where the result

would be an increased cost of 50 percent or more of the value of

the element involved (§§4.1.6(3); 3.5 (\"structural

impractibility\")). Cost is a factor. (Note that the similar term,

\"structural impracticability,\" is used in ADAAG (see item #3

above), but in ADAAG it is used in relation to new construction.

In UFAS. it is used in relation to alterations, and it has a

different meaning.)

24

5\) Alterations triggering additional requirements

ADAAG: Alterations to primary function areas (where major

activities take place) trigger a \"path of travel\" requirement,

that is, a requirement to make the path of travel from the

entrance to the altered area - and telephones, restrooms, and

drinking fountains serving the altered area - accessible

(Sec.4.1.6(2)). But, under the Department of Justice title III

rule, a public entity is not required to spend more than 20% of

the cost of the original alteration on making the path of travel

accessible, even if this cost limitation results in less than

full accessibility (28 CFR 36.403(f)).

UFAS: If a building undergoes a \"substantial alteration\" (where

the total cost of all alterations In a 12-month period amounts to

50% or more of the value of the building), the public entity must

provide an accessible route from public transportation, parking,

streets, and sidewalks to all accessible parts of the building;

an accessible entrance; and accessible restrooms (§4.1.6(3)).

6\) Additions

ADAAG: Each addition to an existing building is regarded as an

alteration subject to the ADAAG alterations requirements

(including triggering of path of travel obligations, if

applicable). If the addition does not have an accessible

entrance, the path of travel obligation may require an accessible

route from the addition through the existing building, including

its entrance and exterior approaches, subject to the 20%

disproportionality limitation. Moreover, to the extent that a

space or element is newly constructed as part of an addition, it

is also regarded as new construction and must comply with the

applicable new construction provisions of ADAAG (§4.1.5).

UFAS: Has specific requirements for additions, including

requirements for entrances, routes, restrooms, and common areas.

An accessible route from the addition through the existing

building, including its entrance, is required if the addition

does not have an accessible entrance (§4.1.5).

II-6.3200 Elements. The following requirements apply in new
construction,

unless otherwise indicated.

1\) Van parking

ADAAG: One in every eight accessible spaces must be wide enough

and high enough for a van lift to be deployed. The space must be

marked as \"van accessible\" with a supplementary sign.

Alternatively, \"universal parking\" is permitted, in which all

spaces can accommodate van widths (§4.1.2(5)(b)).

UFAS: Van parking is not required. Universal parking is not

addressed.

25

2\) Valet parking

ADAAG: Facilities with valet parking must have an accessible

passenger loading zone on an accessible route to the exterior of

the facility (§4.1 2(5)(e)).

UFAS: No requirements for valet parking.

3\) Signs

ADAAG:

o Signs designating permanent rooms and spaces (men\'s and women\'s

rooms; room numbers: exit signs) must have raised and Brailled

letters: must comply with finish and contrast standards; and must

be mounted at a certain height and location (Sec.4.1.3(l6)(a)).

o Signs that provide direction to or information about

functional spaces of a building (e.g. \"cafeteria this way;\" \"copy

room\") need not comply with requirements for raised and Brailled

letters, but they must comply with requirements for character

proportion, finish, and contrast. If suspended or projected

overhead, they must also comply with character height

requirements (§4.1.3(l6)(b)).

o Building directories and other signs providing temporary

information (such as current occupant\'s name) do not have to

comply with any ADAAG requirements (§4.1.3(16)).

o Has requirements not only for the standard international

symbol of accessibility. but also for symbols of accessibility

identifying volume control telephones, text telephones, and

assistive listening systems (§§4.1.2(7); 4.30.7).

UFAS:

o Signs designating permanent rooms and spaces must be raised

(Braille is not required) and must be mounted at a certain height

and location (§4.1.2(15)).

o All other signs (including temporary signs) must comply with

requirements for letter proportion and color contrast, but not

with requirements for raised letters or mounting height

(§4.1.2(15)).

o Requires only the standard international symbol of

accessibility (§4.30.5).

4\) Entrances

ADAAG: At least 50 percent of all public entrances must be

accessible with certain qualifications. In addition, there must

be accessible entrances to enclosed parking, pedestrian tunnels,

and elevated walkways (§4.1.3(8)).

26

UFAS: At least one principal entrance at each

grade floor level must be accessible. In addition, there must be

an accessible entrance to transportation facilities, passenger

loading zones, accessible parking, taxis, streets, sidewalks, and

interior accessible areas, if the building has entrances that

normally serve those functions (§4.1.2(8)). (This latter

requirement could result in all entrances having to be accessible

in many cases.)

5\) Areas of rescue assistance or places of refuge

ADAAG: Areas of rescue assistance (safe areas in which to await

help in an emergency) are generally required on each floor, other

than the ground floor, of a multistory building. An accessible

egress route or an area of rescue assistance is required for each

exit required by the local fire code. Specific requirements are

provided for such features as location, size, stairway width, and

two-way communications. Areas of rescue assistance are not

required in buildings with supervised automatic sprinkler

systems, nor are they required in alterations (§4.1.3(9)).

UFAS: Accessible routes must serve as a means of egress or

connect to an accessible \"place of refuge.\" No specific

requirements for places of refuge are included. Rather, UFAS

refers to local administrative authority for specific provisions

on location, size, etc. UFAS requires more than one means of

accessible egress when more than one exit is required (§4.3.10).

6\) Water fountains

ADAAG: Where there is more than one fountain on a floor, 50%

must be accessible to persons using wheelchairs. If there is only

one drinking fountain on a floor, it must be accessible both to

individuals who use wheelchairs and to individuals who have

trouble bending or stooping (for example, a \"hi-lo fountain\" or

fountain and water cooler may be used) (§4.1.3(10)).

UFAS: Approximately 50% on each floor must be accessible. If

there is only one fountain on a floor, it must be accessible to

individuals who use wheelchairs (§4.1.3(9)).

7\) Storage and shelves

ADAAG: One of each type of fixed storage facility must be

accessible. Self-service shelves and displays must be on an

accessible route but need not comply with reach-range

requirements (§4.1.3(12)).

UFAS: Has the same requirements as ADAAG for fixed storage, but

does not contain the reach requirement exemption for self-service

shelves and displays (§4.1.2(11)).

8\) Volume controls

27

ADAAG: All accessible public phones must be equipped with volume

controls. In addition, 25%, but never less than one, of all other

public phones must have volume controls (§4.1.3(17)(b)).

UFAS: At least one accessible telephone must have a volume

control (§4.1.2(l6)(b)).

9\) Telecommunication Devices for the Deaf (TDD\'s)

ADAAG: One TDD (also known as a \"text telephone\") must be

provided inside any building that has at least one interior pay

phone and four or more public pay telephones, counting both

interior and exterior phones. In addition, one TDD or text

telephone (per facility) must be provided whenever there is an

interior public pay phone in a stadium or arena; convention

center; hotel with a convention center; covered shopping mall; or

hospital emergency, recovery, or waiting room (§4.1.3(17)(c)).

UFAS: No requirement for TDD\'s.

10\) Assembly areas

ADAAG:

. Wheelchair seating: Requirements triggered in any assembly area

with fixed seating that seats four or more people. The number of

wheelchair locations required depends upon the size of the

assembly area. When the area has over 300 seats, there are

requirements for dispersal of wheelchair seating. ADAAG also

contains requirements for aisle seats without armrests (or with

removable armrests) and fixed seating for companions located

adjacent to each wheelchair seating area (§4.1.3(19)(a)).

. Assistive listening systems: Certain fixed seating assembly

areas that accommodate 50 or more people or have audio-

amplification systems must have permanently installed assistive

listening systems. Other assembly areas must have permanent

systems or an adequate number of electrical outlets or other

wiring to support a portable system. A special sign indicating

the availability of the system is required. The minimum number of

receivers must be equal to four percent of the total number of

seats, but never less than two (§4.1.3(19)(b)).

UFAS:

. Wheelchair Seating: No requirements for wheelchair seating are

triggered. unless the assembly area has 50 or more seats. Seating

must be dispersed and provide comparable lines of sight (§4.1.2(1

8)(a)).

. Assistive listening systems: Assembly areas with audio-

amplification systems must have a listening system that serves a

reasonable number of people, but at least two. If it has no

28

amplification system or is used primarily as meeting or

conference room, it must have a permanent or portable system. No

special signs are required (§4.l.2(18)(b)).

11\) Automated teller machines (ATM\'s)

ADAAG: Where ATM\'s are provided, each must be accessible, except

that only one need comply when two or more ATM\'s are at the same

location. Accessible machines must have, among other features,

accessible controls and instructions and other information

accessible to persons with sight impairments (§4.1.3(20)).

UFAS: No requirements for ATM\'s.

12\) Bathroom

ADAAG: Every public and common use bathroom must be accessible.

Generally only one stall must be accessible (standard five-by-

five feet). When there are six or more stalls, there must be one

accessible stall and one stall that is three feet wide

(§§4.1.3(11); 4.22.4).

UFAS: Same general requirements but no requirement for an

additional three-foot-wide stall (§§4.1.2(10); 4.22.4).

13\) Detectable warnings

ADAAG: Required on curb ramps, hazardous vehicular areas, and

reflecting pools, but not on doors to hazardous areas. The

warnings must be truncated domes (§4.29).

UFAS: \"Tactile warnings\" (uses different terminology) required

only on doors to hazardous areas. Must be a textured surface on

the door handle or hardware (§4.29).

14\) Carpet and carpet tile

ADAAG: Same standards for carpet and carpet tile: maximum pile

height of 1/2\" (§4.5.3).

UFAS: Carpet must have maximum pile height of 1/2\". Carpet tile

must have maximum combined thickness of pile, cushion, and

backing height of 1/2\" (§4.5.3).

15\) Curb ramps

ADAAG: Curb ramps must have detectable warnings (which must be

raised truncated domes) (§4.7.7).

UFAS: No requirement for detectable warnings on curb ramps.

16\) Elevator hoistway floor designations and car controls

29

ADAAG: Must have raised and Brailled characters (§§4.10.5;

4.10.12).

UFAS: Must have raised characters; no requirement for Braille

(§§4.10.5; 4.10.12).

17\) Visual alarms

ADAAG: Contains details about features required on visual alarms

for individuals with hearing impairments, including type of lamp,

color, intensity, and location. Flash rate must be at a minimum

of 1Hz and maximum of 3Hz (§4.28.3).

UFAS: Contains much less detail. Allows faster flash rate of up

to 5Hz (§4.28.3).

18\) Elevators and platform lifts in new construction and alterations

ADAAG: The elevator exemption for two-story places of public

accommodation or commercial facilities does not apply to

buildings and facilities subject to title II. Therefore,

elevators are required in all new multilevel buildings or

facilities, but vertical access to elevator pits, elevator

penthouses, mechanical rooms, and piping or equipment catwalks is

not required. Platform lifts may be used instead of elevators

under certain conditions in new construction and may always be

used in alterations (§4.1.3(5)). Individuals must be able to

enter unassisted, operate, and exit the lift without assistance

(4.1.1.3).

UFAS: Has same general requirement for elevators and exceptions

similar to those in ADAAG. Platform lifts may be substituted for

elevators in new construction or alterations \"if no other

alternative is feasible\" (§4.1.2(5)). Lifts must facilitate

unassisted entry and exit (but not \"operation\" of the lift as in

ADAAG) (§4.1.1.3).

II-6.3300 Types of facilities

I\) Historic buildings

ADAAG: Contains procedures for buildings eligible for listing in

the National Register of Historic Places under the National

Historic Preservation Act and for historic buildings designated

under State or local law (§4.1.7).

UFAS: Contains requirements for buildings eligible for listing in

the National Register of Historic Places under the National

Historic Preservation Act that are also subject to the

Architectural Barriers Act. UFAS does not contain provisions

applicable to buildings and facilities that are designated as

30

\"historic\" under State or local law. (Under title II, the UFAS

provisions may be applied to any building that is eligible for

listing on the National Register of Historic Places, regardless

of whether it is also subject to the Architectural Barriers Act.)

(§4.1.7).

2\) Residential facilities/transient lodging

ADAAG:

. Hotels, motels, dormitories, and other similar establishments:

Four percent of the first 100 rooms and approximately two percent

of rooms in excess of 100 must be accessible to both persons with

hearing impairments (i.e., contain visual alarms, visual

notification devices, volume-control telephones, and an

accessible electrical outlet for a text telephone) and to persons

with mobility impairments. Moreover, a similar percentage of

additional rooms must be accessible to persons with hearing

impairments. In addition. where there are more than 50 rooms,

approximately one percent of rooms must be accessible rooms with

a special roll-in/transfer shower. There are special provisions

for alterations (§§9.1-9.4).

. Homeless shelters, halfway houses, and similar social service

establishments: Homeless shelters and other social service

entities must provide the same percentage of accessible sleeping

accommodations as above. At least one type of amenity in each

common area must be accessible. Alterations are subject to less

stringent standards (§9.5).

UFAS: Contains requirements for residential occupancies with

technical requirements for \"dwelling units.\" No requirements for

sleeping rooms for individuals with hearing impairments. No

requirements for roll-in showers as in ADAAG. No standards for

alterations (§§4.1.4(11);4.34).

3\) Restaurants

ADAAG: In restaurants, generally all dining areas and five

percent of fixed tables (but not less than one) must be

accessible. While raised or sunken dining areas must be

accessible, inaccessible mezzanines are permitted under certain

conditions. Contains requirements for counters and bars, access

aisles, food service lines, tableware and condiment areas, raised

speaker\'s platforms, and vending machine areas (but not

controls). Contains some less stringent requirements for

alterations (§5).

UFAS: Less detailed requirements. Does not address counters and

bars. Raised platforms are allowed if same service and decor are

provided. Vending machines and controls are covered. No special,

less stringent requirements for alterations (§5).

31

4\) Medical or health care facilities

ADAAG: In medical care facilities, all public and common use

areas must be accessible. In general purpose hospitals and in

psychiatric and detoxification facilities, 10 percent of patient

bedrooms and toilets must be accessible. The required percentage

is 100 percent for special facilities treating conditions that

affect mobility, and 50 percent for long-term care facilities and

nursing homes. Uses terms clarified by the Department of Health

and Human Services to describe types of facilities. Some

descriptive information was added. Contains special, less

stringent requirements for alterations (§6).

UFAS: Uses different terms to describe types of facilities.

Required clearances in rooms exceed ADAAG requirements. No

special, less stringent requirements for alterations (§6).

5\) Mercantile

ADAAG:

Counters:

. At least one of each type of sales or service counter

where a cash register is located must be accessible.

Accessible counters must be dispersed throughout the

facility. Auxiliary counters are permissible in alterations

(§7.2(1)).

. At counters without cash registers, such as bank teller

windows and ticketing counters, three alternatives are

possible: (1) a portion of the counter may be lowered, (2)

an auxiliary counter may be provided, or (3) equivalent

facilitation may be provided by installing a folding shelf

on the front of a counter to provide a work surface for a

person using a wheelchair (§7.2(2)).

Check-out isles:

. At least one of each design of check-out aisle must be

accessible, and, in many cases, additional check-out aisles

are required to be accessible (i.e., from 20 to 40 percent)

depending on the number of check-out aisles and the size of

the facility. There are less stringent standards for

alterations (§7.3).

UFAS:

Much less detail. At service counters, must provide an accessible

portion of the counter or a nearby accessible counter. At least

one check-out aisle must be accessible(§7).

6\) Jails and prisons

32

ADAAG: No scoping requirements indicating how many cells need to

be accessible.

UFAS: Five percent of residential units in jails, prisons,

reformatories, and other detention or correctional facilities

must be accessible (§4.1.4(9)(c)).

II-6.4000 Leased buildings. Public entities are encouraged, but not

required, to lease accessible space. The availability of accessible
private

commercial space will steadily increase over time as the title III

requirements for new construction and alterations take effect. Although
a

public entity is not required to lease accessible space, once it
occupies a

facility, it must provide access to all of the programs conducted in
that

space (see II-5.0000). Thus, the more accessible the space is to begin

with, the easier and less costly it will be later on to make programs

available to individuals with disabilities and to provide reasonable

accommodations for employees who may need them.

II-6.5000 Alterations to historic properties. Alterations to historic

properties must comply with the specific provisions governing historic

properties in ADAAG or UFAS, to the maximum extent feasible. Under those

provisions, alterations should be done in full compliance with the

alteration standards for other types of buildings. However, if following

the usual standards would threaten or destroy the historic significance
of

a feature of the building, alternative standards may be used. The
decision

to use alternative standards for that feature must be made in
consultation

with the appropriate historic advisory board designated in ADAAG or
UFAS,

and interested persons should be invited to participate in the

decisionmaking process.

What are \"historic properties?\" These are properties listed or

eligible for listing in the National Register of Historic Places, or

properties designated as historic under State or local law.

What are the alternative requirements? The alternative requirements

for historic buildings or facilities provide a minimal level of access.
For

example

1\) An accessible route is only required from one site access point

(such as the parking lot).

2\) A ramp may be steeper than is ordinarily permitted.

3\) The accessible entrance does not need to be the one used by the

general public.

4\) Only one accessible toilet is required and it may be unisex.

5\) Accessible routes are only required on the level of the

accessible entrance.

But what if complying with even these minimal alternative requirements

will threaten or destroy the historic significance? In such a case,
which

33

is rare, the public entity need not make the structural changes required
by

UFAS or ADAAG. But, if structural modifications that comply with UFAS or

ADAAG cannot be undertaken, the Department\'s regulation requires that

\"program accessibility\" be provided.

ILLUSTRATION: A town owns a one-story historic house and decides to

make certain alterations in it so that the house can be used as a

museum. The town architect concludes that most of the normal standards

for alterations can be applied during the renovation process without

threatening or destroying historic features. There appears, however,

to be a problem if one of the interior doors is widened, because

historic decorative features on the door might be destroyed. The town

architect consults the standards and determines that the appropriate

historic body with jurisdiction over the particular historic home is

the State Historic Preservation Officer. The architect then sets up a

meeting with that officer, to which the local disability group and the

designated title II coordinator are invited.

At the meeting the participants agree with the town architect\'s

conclusion that the normal alterations standards cannot be applied to

the interior door. They then review the special alternative

requirements, which require an accessible route throughout the level

of the accessible entrance. The meeting participants determine that

application of the alternative minimal requirements is likewise not

possible.

In this situation, the town is not required to widen the interior

door. Instead, the town provides access to the program offered in that

room by making available a video presentation of the items within the

inaccessible room. The video can be viewed in a nearby accessible room

in the museum.

II-6.6000 Curb ramps. When streets, roads, or highways are newly built
or

altered. they must have ramps or sloped areas wherever there are curbs
or

other barriers to entry from a sidewalk or path. Likewise, when new

sidewalks or paths are built or are altered, they must contain curb
ramp;

or sloped areas wherever they intersect with streets, roads, or
highways.

34

II-7.0000 COMMUNICATIONS

Regulatory references: 28 CFR 35.160-35.164.

II-7.1000 Equally effective communication. A public entity must ensure

that its communications with individuals with disabilities are as
effective

as communications with others. This obligation. however, does not
require a

public entity to take any action that it can demonstrate would result in
a

fundamental alteration in the nature of its services, programs, or

activities, or in undue financial and administrative burdens.

In order to provide equal access, a public accommodation is required

to make available appropriate auxiliary aids and services where
necessary

to ensure effective communication.

What are auxiliary aids and services? Auxiliary aids and services

include a wide range of services and devices that promote effective

communication.

Examples of auxiliary aids and services for individuals who are deaf

or hard of hearing include qualified interpreters, notetakers, computer-

aided transcription services, written materials, telephone hand set

amplifiers, assistive listening systems, telephones compatible with
hearing

aids, closed caption decoders, open and closed captioning,

telecommunications devices for deaf persons (TDDs), videotext displays,
and

exchange of written notes.

Examples for individuals with vision impairments include qualified

readers, taped texts, audio recordings, Brailled materials, large print

materials, and assistance in locating items.

Examples for individuals with speech impairments include TDD\'s,

computer terminals, speech synthesizers, and communication boards.

The type of auxiliary aid or service necessary to ensure effective

communication will vary in accordance with the length and complexity of
the

communication involved.

ILLUSTRATION 1: Some individuals who have difficulty communicating

because of a speech impairment can be understood if individuals

dealing with them merely listen carefully and take the extra time that

is necessary.

ILLUSTRATION 2: For individuals with vision impairments, employees can

provide oral directions or read written instructions. In many simple

transactions, such as paying bills or filing applications,

communications provided through such simple methods will be as

effective as the communications provided to other individuals in

similar transactions.

Many transactions with public entities, however, involve more complex

or extensive communications than can be provided through such simple

35

methods. Sign language or oral interpreters, for example may be required

when the information being communicated in a transaction with a deaf

individual is complex. or is exchanged for a lengthy period of time.

Factors to be considered in determining whether an interpreter is
required

include the context in which the communication is taking place. the
number

of people involved, and the importance of the communication.

ILLUSTRATION 1: A municipal hospital emergency room must be able to

communicate with patients about symptoms and patients must be able to

understand information provided about their conditions and treatment.

In this situation, an interpreter is likely to be necessary for

communications with individuals who are deaf.

ILLUSTRATION 2: Because of the importance of effective communication

in State and local court proceedings, special attention must be given

to the communications needs of individuals with disabilities involved

in such proceedings. Qualified interpreters will usually be necessary

to ensure effective communication with parties, jurors and witnesses

who have hearing impairments and use sign language. For individuals

with hearing impairments who do not use sign language, other types of

auxiliary aids or services, such as assistive listening devices or

computer-assisted transcription services, which allow virtually

instantaneous transcripts of courtroom argument and testimony to

appear on displays, may be required.

Must public service announcements or other television programming

produced by public entities be captioned? Audio portions of television
and

videotape programming produced by public entities are subject to the

requirement to provide equally effective communication for individuals
with

hearing impairments. Closed captioning of such programs is sufficient to

meet this requirement.

Must tax bills from public entities be available in Braille

and/or large print? What about other documents? Tax bills and other
written

communications provided by public entities are subject to the
requirement

for effective communication. Thus, where a public entity provides

information in written form, it must, when requested. make that
information

available to individuals with vision impairments in a form that is
usable

by them. \"Large print\" versions of written documents may be produced
on a

copier with enlargement capacities. Brailled versions of documents
produced

by computers may be produced with a Braille printer, or audio tapes may
be

provided for individuals who are unable to read large print or do not
use

Braille.

II-7.1100 Primary consideration. When an auxiliary aid or service is

required, the public entity must provide an opportunity for individuals

with disabilities to request the auxiliary aids and services of their

choice and must give primary consideration to the choice expressed by
the

individual. \"Primary consideration\' means that the public entity must
honor

the choice, unless it can demonstrate that another equally effective
means

of communication is available, or that use of the means chosen would
result

in a fundamental alteration in the service, program, or activity or in

undue financial and administrative burdens.

36

It is important to consult with the individual to determine the most

appropriate auxiliary aid or service, because the individual with a

disability is most familiar with his or her disability and is in the
best

position to determine what type of aid or service will be effective.
Some

individuals who were deaf at birth or who lost their hearing before

acquiring language, for example, use sign language as their primary form
of

communication and may be uncomfortable or not proficient with written

English making use of a notepad an ineffective means of communication.

Individuals who lose their hearing later in life, on the other hand,

may not be familiar with sign language and can communicate effectively

through writing. For these individuals, use of a word processor with a

videotext display may provide effective communication in transactions
that

are long or complex, and computer-assisted simultaneous transcription
may

be necessary in courtroom proceedings. Individuals with less severe
hearing

impairments are often able to communicate most effectively with voice

amplification provided by an assistive listening device.

For individuals with vision impairments. appropriate auxiliary

aids include readers, audio recordings, Brailled materials, and large
print

materials. Brailled materials, however, are ineffective for many

individuals with vision impairments who do not read Braille, just as
large

print materials would be ineffective for individuals with severely
impaired

vision who rely on Braille or on audio communications. Thus, the

requirement for consultation and primary consideration to the
individuals

expressed choice applies to information provided in visual formats as
well

as to aurally communicated information.

II-7.1200 Qualified interpreter. There are a number of sign language

systems in use by individuals who use sign language. (The most common

systems of sign language are American Sign Language and signed English.)

Individuals who use a particular system may not communicate effectively

through an interpreter who uses a different system. When an interpreter
is

required, therefore, the public entity should provide a qualified

interpreter, that is, an interpreter who is able to sign to the
individual

who is deaf what is being said by the hearing person and who can voice
to

the hearing person what is being signed by the individual who is deaf.
This

communication must be conveyed effectively. accurately, and impartially

through the use of any necessary specialized vocabulary.

May friends or relatives be asked to interpret? Often, friends or

relatives of the individual can provide interpreting services, but the

public entity may not require the individual to provide his or her own

interpreter, because it is the responsibility of the public entity to

provide a qualified interpreter. Also, in many situations, requiring a

friend or family member to interpret may not be appropriate, because his
or

her presence at the transaction may violate the individual\'s right to

confidentiality. or because the friend or family member may have an

interest in the transaction that is different from that of the
individual

involved. The obligation to provide \"impartial\" interpreting services

requires that, upon request, the public entity provide an interpreter
who

does not have a personal relationship to the individual with a
disability.

37

Are certified interpreters considered to be more qualified than

interpreters without certification? Certification is not required in
order

for an interpreter to be considered to have the skills necessary to

facilitate communication. Regardless of the professionalism or skills
that

a certified interpreter may possess, that particular individual may not

feel comfortable or possess the proper vocabulary necessary for

interpreting for a computer class, for example. Another equally skilled,

but noncertified interpreter might have the necessary vocabulary, thus

making the noncertified person the qualified interpreter for that

particular situation.

Can a public entity use a staff member who signs \"pretty well\" as an

interpreter for meetings with individuals who use sign language to

communicate? Signing and interpreting are not the same thing. Being able
to

sign does not mean that a person can process spoken communication into
the

proper signs, nor does it mean that he or she possesses the proper
skills

to observe someone signing and change their signed or fingerspelled

communication into spoken words. The interpreter must be able to
interpret

both receptively and expressively.

II-7.2000 Telephone communications. Public entities that communicate by

telephone must provide equally effective communication to individuals
with

disabilities, including hearing and speech impairments. If telephone
relay

services, such as those required by title IV of the ADA, are available,

these services generally may be used to meet this requirement.

Relay services involve a relay operator who uses both a standard

telephone and a TDD to type the voice messages to the TDD user and read
the

TDD messages to the standard telephone user. Where such services are

available, public employees must be instructed to accept and handle
relayed

calls in the normal course of business.

II-7.3000 Emergency telephone services

II-7.3100 General. Many public entities provide telephone emergency

services by which individuals can seek immediate assistance from police,

fire, ambulance, and other emergency services. These telephone emergency

services-including \"911\" services-are clearly an important public
service

whose reliability can be a matter of life or death. Public entities must

ensure that these services, including 911 services, are accessible to

persons with impaired hearing and speech.

State and local agencies that provide emergency telephone services

must provide \"direct access to individuals who rely on a TDD or
computer

modem for telephone communication. Telephone access through a third
party

or through a relay service does not satisfy the requirement for direct

access. (However, if an individual places a call to the emergency
service

through a relay service, the emergency service should accept the call

rather than require the caller to hang up and call the emergency service

directly without using the relay.) A public entity may, however, operate

its own relay service within its emergency system, provided that the

services for nonvoice calls are as effective as those provided for voice

calls.

38

What emergency telephone services are covered by title II? The term

\"telephone emergency services\" applies to basic emergency services -

police, fire, and ambulance - that are provided by public entities,

including 911 (or, in some cases, seven digit) systems. Direct access
must

be provided to all services included in the system, including services
such

as emergency poison control information. Emergency services that are not

provided by public entities are not subject to the requirement for
\"direct

access.\"

What is \"direct access? \"Direct access\" means that emergency
telephone

services can directly receive calls from TDD\'s and computer modem users

without relying on outside relay services or third party services.

Does title II require that telephone emergency service systems be

compatible with all formats used for nonvoice communications? No. At

present, telephone emergency services must only be compatible with the

Baudot format. Until it can be technically proven that communications in

another format can operate in a reliable and compatible manner in a
given

telephone emergency environment, a public entity would not be required
to

provide direct access to computer modems using formats other than
Baudot.

Are any additional dialing or space bar requirements permissible for

911 systems? No. Additional dialing or space bar requirements are not

permitted. Operators should be trained to recognize incoming TDD signals

and respond appropriately. In addition, they also must be trained to

recognize that \"silent\" calls may be TDD or computer modem calls and
to

respond appropriately to such calls as well.

II-7.3200 911 lines. Where a 911 telephone line is available, a separate

seven-digit telephone line must not be substituted as the sole means for

nonvoice users to access 911 services. A public entity may, however,

provide a separate seven-digit line for use exclusively by nonvoice
calls

in addition to providing direct access for such calls to the 911 line.

Where such a separate line is provided, callers using TDD\'s or computer

modems would have the option of calling either 911 or the seven-digit

number.

II-7.3300 Seven-digit lines. Where a 911 line is not available and the

public entity provides emergency services through a seven-digit number,
it

may provide two separate lines - one for voice calls, and another for

nonvoice calls rather than providing direct access for nonvoice calls to

the line used for voice calls, provided that the services for nonvoice

calls are as effective as those offered for voice calls in terms of time

response and availability in hours. Also, the public entity must ensure

that the nonvoice number is publicized as effectively as the voice
number,

and is displayed as prominently as the voice number wherever the
emergency

numbers are listed.

II-7.3400 Voice amplification. Public entities are encouraged, but not

required, to provide voice amplification for the operator\'s voice. In
an

emergency, a person who has a hearing loss may be using a telephone that

does not have an amplification device. Installation of speech
amplification

devices on the handsets of operators would be one way\' to respond to
this

situation.

39

II-8.0000 ADMINISTRATIVE REQUIREMENTS

Regulatory references: 28 CFR 35.105-35.107; 35.150(c) and (d).

II-8.1000 General. Title II requires that public entities take several

steps designed to achieve compliance. These include the preparation of a

self-evaluation. In addition public entities with 50 or more employees
are

required to -

1\) Develop a grievance procedure;

2\) Designate an individual to oversee title II compliance;

3\) Develop a transition plan if structural changes are necessary for

achieving program accessibility: and

4\) Retain the self-evaluation for three years.

How does a public entity determine whether it has \"50 or more

employees\"? Determining the number of employees will be based on a

governmentwide total of employees, rather than by counting the number of

employees of a subunit, department, or division of the local government.

Part-time employees are included in the determination.

ILLUSTRATION: Town X has 55 employees (including 20 part-time

employees). Its police department has 10 employees, and its fire

department has eight employees. The police and fire department are

subject to title II\'s administrative requirements applicable to public

entities with 50 or more employees because Town X, as a whole, has 50

or more employees.

Because all States have at least 50 employees, all State departments,

agencies, and other divisional units are subject to title II\'s

administrative requirements applicable to public entities with 50 or
more

employees.

II-8.2000 Self-evaluation. All public entities subject to title II of
the

ADA must complete a self-evaluation by January 26, 1993 (one year from
the

effective date of the Department\'s regulation).

Does the fact that a public entity has not completed its self-

evaluation until January 26, 1993, excuse interim compliance? No. A
public

entity is required to comply with the requirements of title II on
January

26, 1992, whether or not it has completed its self-evaluation.

Which public entities must retain a copy of the self-evaluation? A

public entity that employs 50 or more employees must retain its self-

evaluation for three years. Other public entities are not required to

retain their self-evaluations but are encouraged to do so because these

documents evidence a public entity\'s good faith efforts to comply with

title II\'s requirements.

40

What if a public entity already did a self-evaluation as part of its

obligations under section 504 of the Rehabilitation Act of 1973? The
title

II self-evaluation requirement applies only to those policies and
practices

that previously had not been included in a self-evaluation required by

section 504. Because most section 504 self-evaluations were done many

years ago, however, the Department expects that many public entities
will

re-examine all their policies and practices. Programs and functions may

have changed significantly since the section 504 self-evaluation was

completed. Actions that were taken to comply with section 504 may not
have

been implemented fully or may no longer be effective. In addition.
section

504\'s coverage has been changed by statutory amendment, particularly
the

Civil Rights Restoration Act of 1987, which expanded the definition of a

covered \"program or activity.\" Therefore, public entities should
ensure

that all programs, activities, and services are examined fully, except

where there is evidence that all policies were previously scrutinized
under

section 504.

What should a self-evaluation contain? A self-evaluation is a public

entity\'s assessment of its current policies and practices. The self-

evaluation identifies and corrects those policies and practices that are

inconsistent with title II\'s requirements. As part of the
self-evaluation,

a public entity should:

1\) Identify all of the public entity\'s programs, activities, and

services; and

2\) Review all the policies and practices that govern the

administration of the public entity\'s programs, activities, and

services.

Normally, a public entity\'s policies and practices are reflected in its

laws, ordinances, regulations, administrative manuals or guides, policy

directives, and memoranda. Other practices, however, may not be recorded

and may be based on local custom.

Once a public entity has identified its policies and practices, it

should analyze whether these policies and practices adversely affect the

full participation of individuals with disabilities in its programs,

activities, and services. In this regard, a public entity should be
mindful

that although its policies and practices may appear harmless, they may

result in denying individuals with disabilities the full participation
of

its programs, activities, or services. Areas that need careful
examination

include the following:

1\) A public entity must examine each program to determine whether

any physical barriers to access exist. It should identify steps

that need to be taken to enable these programs to be made

accessible when viewed in their entirety. If structural changes

are necessary, they should be included in the transition plan

(see II-8.3000).

41

2\) A public entity must review its policies and practices to

determine whether any exclude or limit the participation of

individuals with disabilities in its programs, activities, or

services. Such policies or practices must be modified, unless

they are necessary for the operation or provision of the program,

service, or activity. The self-evaluation should identify policy

modifications to be implemented and include complete

justifications for any exclusionary or limiting policies or

practices that will not be modified.

3\) A public entity should review its policies to ensure that it

communicates with applicants participants, and members of the

public with disabilities in a manner that is as effective as its

communications with others. If a public entity communicates with

applicants and beneficiaries by telephone it should ensure that

TDD\'s or equally effective telecommunication systems are used to

communicate with individuals with impaired hearing or speech.

Finally, if a public entity provides telephone emergency

services, it should review its policies to ensure direct access

to individuals who use TDD\'s and computer modems.

4\) A public entity should review its policies to ensure that they

include provisions for readers for individuals with visual

impairments; interpreters or other alternative communication

measures, as appropriate, for individuals with hearing

impairments; and amanuenses for individuals with manual

impairments. A method for securing these services should be

developed, including guidance on when and where these services

will be provided. Where equipment is used as part of a public

entity\'s program, activity, or service, an assessment should be

made to ensure that the equipment is usable by individuals with

disabilities, particularly individuals with hearing, visual, and

manual impairments. In addition, a public entity should have

policies that ensure that its equipment is maintained in operable

working order.

5\) A review should be made of the procedures to evacuate individuals

with disabilities during an emergency. This may require the

installation of visual and audible warning signals and special

procedures for assisting individuals with disabilities from a

facility during an emergency.

6\) A review should be conducted of a public entity\'s written and

audio-visual materials to ensure that individuals with

disabilities are not portrayed in an offensive or demeaning

manner.

7\) If a public entity operates historic preservation programs, it

should review its policies to ensure that it gives priority to

methods that provide physical access to individuals with

disabilities.

42

8\) A public entity should review its policies to ensure that its

decisions concerning a fundamental alteration in the nature of a

program activity, or service, or a decision that an undue

financial and administrative burden will be imposed by title II,

are made properly and expeditiously.

9\) A public entity should review its policies and procedures to

ensure that individuals with mobility impairments are provided

access to public meetings.

10\) A public entity should review its employment practices to ensure

that they comply with other applicable nondiscrimination

requirements, including section 504 of the Rehabilitation Act and

the ADA regulation issued by the Equal Employment Opportunity

Commission.

11\) A public entity should review its building and construction

policies to ensure that the construction of each new facility or

part of a facility, or the alteration of existing facilities

after January 26, 1992, conforms to the standards designated

under the title II regulation.

12\) A review should be made to ascertain whether measures have been

taken to ensure that employees of a public entity are familiar

with the policies and practices for the full participation of

individuals with disabilities. If appropriate, training should be

provided to employees.

13\) If a public entity limits or denies participation in its

programs, activities, or services based on drug usage, it should

make sure that such policies do not discriminate against former

drug users, as opposed to individuals who are currently engaged

in illegal use of drugs.

If a public entity identifies policies and practices that deny or

limit the participation of individuals with disabilities in its
programs,

activities, and services, when should it make changes? Once a public
entity

has identified policies and practices that deny or limit the
participation

of individuals with disabilities in its programs, activities, and
services,

it should take immediate remedial action to eliminate the impediments to

full and equivalent participation. Structural modifications that are

required for program accessibility should be made as expeditiously as

possible but no later than July 26, 1995.

Is there a requirement for public hearings on a public entity\'s self-

evaluation? No, but public entities are required to accept comments from

the public on the self-evaluation and are strongly encouraged to consult

with individuals with disabilities and organizations that represent them
to

assist in the self-evaluation process. Many individuals with
disabilities

have unique perspectives on a public entity\'s programs, activities, and

services. For example, individuals with mobility impairments can readily

identify barriers preventing their full enjoyment of the public
entity\'s

43

programs, activities, and services. Similarly, individuals with hearing

impairments can identify the communication barriers that hamper

participation in a public entity\'s programs, activities, and services.

II-8.3000 Transition plan. Where structural modifications are required
to

achieve program accessibility. a public entity with 50 or more employees

must do a transition plan by July 26, 1992, that provides for the
removal

of these barriers. Any structural modifications must be completed as

expeditiously as possible, but, in any event, by January 26, 1995.

What if a public entity has already done a transition plan under

section 504 of the Rehabilitation Act of 1973? If a public entity

previously completed a section 504 transition plan, then, at a minimum,
a

title II transition plan must cover those barriers to accessibility that

were not addressed by its prior transition plan. Although not required,
it

may be simpler to include all of a public entity\'s operations in its

transition plan rather than identifying and excluding those barriers
that

were addressed in its previous plan.

Must the transition plan be made available to the public? If a public

entity has 50 or more employees, a copy of the transition plan must be
made

available for public inspection.

What are the elements of an acceptable transition plan? A transition

plan should contain at a minimum-

1\) A list of the physical barriers in a public entity\'s facilities

that limit the accessibility of its programs, activities, or

services to individuals with disabilities;

2\) A detailed outline of the methods to be utilized to remove these

barriers and make the facilities accessible;

3\) The schedule for taking the necessary steps to achieve compliance

with title II. If The time period for achieving compliance is

longer than one year, the plan should identify the interim steps

that will be taken during each year of the transition period;

and,

4\) The name of the official responsible for the plan\'s

implementation.

II-8.4000 Notice to the public. A public entity must provide information

on title II\'s requirements to applicants, participants, beneficiaries.
and

other interested persons. The notice shall explain title II\'s
applicability

to the public entity\'s services, programs, or activities. A public
entity

shall provide such information as the head of the public entity
determines

to be necessary to apprise individuals of title II\'s prohibitions
against

discrimination.

What methods can be used to provide this information? Methods include

the publication of information in handbooks, manuals, and pamphlets that

are distributed to the public to describe a public entity\'s programs
and

44

activities; the display of informative posters in service centers and
other

public places; or the broadcast of information by television or radio.
In

providing the notice, a public entity must comply with the title II

requirements for effective communication, including alternate formats,
as

appropriate.

II-8.5000 Designation of responsible employee and development of
grievance

procedures. A public entity that employs 50 or more persons shall
designate

at least one employee to coordinate its efforts to comply with and
fulfill

its responsibilities under title II, including the investigation of

complaints. A public entity shall make available the name, office
address,

and telephone number of any designated employee.

In addition, the public entity must adopt and publish grievance

procedures providing for prompt and equitable resolution of complaints

alleging any action that would be prohibited by title II.

44a

II-90000 INVESTIGATION OF COMPLAINTS AND ENFORCEMENT

Regulation references: 28 CFR 35.170-35.190.

II-9.1000 General. Individuals wishing to file title II complaints may

either file -

1\) An administrative complaint with an appropriate Federal

agency; or

2\) A lawsuit in Federal district court.

If an individual files an administrative complaint, an appropriate
Federal

agency will investigate the allegations of discrimination. Should the

agency conclude that the public entity violated title II, it will
attempt

to negotiate a settlement with the public entity to remedy the
violations.

If settlement efforts fail, the matter will be referred to the
Department

of Justice for a decision whether to institute litigation.

How does title II relate to section 504? Many public entities are

subject to section 504 of the Rehabilitation Act as well as title II.

Section 504 covers those public entities operating programs or
activities

that receive Federal financial assistance. Title II does not displace
any

existing section 504 jurisdiction.

The substantive standards adopted for title II are generally the same

as those required under section 504 for federally assisted programs. In

those situations where title II provides greater protection of the
rights

of individuals with disabilities, however, the funding agencies will
also

apply the substantive requirements established under title II in
processing

complaints covered by both title II and section 504.

Individuals may continue to file discrimination complaints against

recipients of Federal financial assistance with the agencies that
provide

that assistance, and the funding agencies will continue to process those

complaints under their existing procedures for enforcing section 504.
The

funding agencies will be enforcing both title II and section 504,
however,

for recipients that are also public entities.

II-9.2000 Complaints. A person or a specific class of individuals or
their

representative may file a complaint alleging discrimination on the basis
of

disability.

What must be included in a complaint? First, a complaint must be in

writing. Second, it should contain the name and address of the
individual

or the representative filing the complaint. Third, the complaint should

describe the public entity\'s alleged discriminatory action in
sufficient

detail to inform the Federal agency of the nature and date of the
alleged

violation. Fourth, the complaint must be signed by the complainant or by

someone authorized to do so on his or her behalf. Finally complaints
filed

on behalf of classes or third parties shall describe or identify (by
name,

if possible the alleged victims of discrimination.

45

Is there a time period in which a complaint must be filed? Yes. A

complaint must be filed within 180 days of the date of the alleged
act(s)

of discrimination, unless the time for filing is extended by the Federal

agency for good cause. As long as the complaint is filed with any
Federal

agency, the 180-day requirement will be considered satisfied.

Where should a complaint be filed. A complaint may be filed with

either -

1\) Any Federal agency that provides funding to the public entity

that is the subject of the complaint;

2\) A Federal agency designated in the title II regulation to

investigate title II complaints; or

3\) The Department of Justice.

Complainants may file with a Federal funding agency that has section

504 jurisdiction, if known. If no Federal funding agency is known, then

complainants should file with the appropriate designated agency. In any

event, complaints may always be filed with the Department of Justice,
which

will refer the complaint to the appropriate agency. The Department\'s

regulation designates eight Federal agencies to investigate title II

complaints primarily in those cases where there is no Federal agency
with

section 504 jurisdiction.

How will employment complaints be handled? Individuals who believe

that they have been discriminated against in employment by a State or
local

government in violation of title II may file a complaint -

1\) With a Federal agency that provides financial assistance, if any,

to the State or local program in which the alleged discrimination

took place; or

2\) With the EEOC, if the State or local government is also subject

to title I of the ADA (see II-4.0000); or

3\) With the Federal agency designated in the title II regulation to

investigate complaints in the type of program in which the

alleged discrimination took place.

As is the case with complaints related to nonemployment issues,

employment complaints may be filed with the Department of Justice, which

will refer the complaint to the appropriate agency.

Which are the designated Federal agencies and what are their areas of

responsibility? The eight designated Federal agencies, the functional
areas

covered by these agencies, and the addresses for filing a complaint are

the-

1\) Department of Agriculture: All programs, services, and regulatory

activities relating to farming and the raising of livestock,

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including extension services. Complaints should be sent to:

Complaints Adjudication Division, Office of Advocacy and

Enterprise, Room 1353 - South Building, Department of

Agriculture, 14th & Independence Avenue, S.W.,Washington, D.C.

20250\.

2\) Department of Education: All programs, services, and regulatory

activities relating to the operation of elementary and secondary

education systems and institutions, institutions of higher

education and vocational education (other than schools of

medicine, dentistry, nursing, and other health-related schools),

and libraries. Complaints should be sent to: Office for Civil

Rights, Department of Education, 330 C Street, S.W., Suite 5000,

Washington. D.C. 20202.

3\) Department of Health and Human Services: All programs, services,

and regulatory activities relating to the provision of health

care and social services, including schools of medicine,

dentistry, nursing, and other health-related schools, the

operation of health care and social service providers and

institutions, including \"grass-roots\" and community services

organizations and programs, and preschool and day care programs.

Complaints should be sent to: Office for Civil Rights, Department

of Health & Human Services, 330 Independence Avenue, S.W.,

Washington, D.C. 20201.

4\) Department of Housing and Urban Development: All programs,

services, and regulatory activities relating to State and local

public housing, and housing assistance and referral. Complaints

should be sent to: Assistant Secretary for Fair Housing and Equal

Opportunity, Department of Housing and Urban Development, 451 7th

Street, S.W., Room 5100, Washington, D.C. 20410.

5\) Department of the Interior: All programs, services, and

regulatory activities relating to lands and natural resources,

including parks and recreation, water and waste management,

environmental protection, energy, historic and cultural

preservation, and museums. Complaints should be sent to: Office

for Equal Opportunity, Office of the Secretary, Department of the

Interior, 18th & C Streets, N.W., Washington, D.C. 20547.

6\) Department of Justice: All programs, services, and regulatory

activities relating to law enforcement, public safety, and the

administration of justice, including courts and correctional

institutions; commerce and industry, including general economic

development, banking and finance, consumer protection, insurance,

and small business; planning, development, and regulation (unless

assigned to other designated agencies); State and local

government support services (e.g., audit, personnel, comptroller,

administrative services); all other government functions not

assigned to other designated agencies. Complaints should be sent

to: Coordination and Review Section, P.O. Box 66118, Civil Rights

Division, U.S. Department of Justice, Washington, D.C. 20035-

6118\.

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7\) Department of Labor: All programs, services, and regulatory

activities relating to labor and the work force. Complaints

should be sent to: Directorate of Civil Rights, Department of

Labor, 200 Constitution Avenue, N.W., Room N-4123, Washington,

D.C. 20210.

8\) Department of Transportation: All programs, services, and

regulatory activities relating to transportation, including

highways, public transportation, traffic management (non-law

enforcement), automobile licensing and inspection, and driver

licensing. Complaints should be sent to: Office for Civil Rights,

Office of the Secretary, Department of Transportation, 400

Seventh Street, S.W., Room 10215, Washington, D.C. 20590.

Where should a complaint be filed if more than one designated agency

has responsibility for a complaint because it concerns more than one

department or agency of a public entity? Complaints involving, more than

one area should be filed with the Department of Justice. If two or more

agencies have apparent responsibility for a complaint, the Assistant

Attorney General for Civil Rights of the Department of Justice shall

determine which one of the agencies shall be the designated agency for

purposes of that complaint. Complaints involving more than one area of a

public entity should be sent to: Coordination and Review Section, Civil

Rights Division, U.S. Department of Justice, P.O. Box 66118, Washington,

D.C. 20035-6118.

How will complaints be resolved? The Federal agency processing the

complaint will resolve the complaint through informal means or issue a

detailed letter containing findings of fact and conclusions of law and,

where appropriate, a description of the actions necessary to remedy each

violation. Where voluntary compliance cannot be achieved, the complaint
may

be referred to the Department of Justice for enforcement. In cases where

there is Federal funding, fund termination is also an enforcement
option.

If a public entity has a grievance procedure, must an individual use

that procedure before filing a complaint with a Federal agency or a
court?

No. Exhaustion of a public entity\'s grievance procedure is not a

prerequisite to filing a complaint with either a Federal agency or a
court.

Must the complainant file a complaint with a Federal agency prior to

filing an action in court? No. The ADA does not require complainants to

exhaust administrative remedies prior to instituting litigation.

Are attorney\'s fees available? Yes. The prevailing party (other than

the United States) in any action or administrative proceeding under the
Act

may recover attorney\'s fees in addition to any other relief granted.
The

\"prevailing party\" is the party that is successful and may be either
the

complainant (plaintiff) or the covered entity against which the action
is

brought (defendant). The defendant, however, may not recover attorney\'s

fees unless the court finds that the plaintiff\'s action was frivolous,

unreasonable, or without foundation, although it does not have to find
that

the action was brought in subjective bad faith. Attorney\'s fees include

48

litigation expenses, such as expert witness fees, travel expenses, and

costs. The United States is liable for attorney\'s fees in the same
manner

as any other party, but is not entitled to them when it is the
prevailing

party.

Is a State immune from suit under the ADA? No. A State is not immune

from an action in Federal court for violations of the ADA.

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