Title II - Affecting State and Local Governments - An Overview
Who is covered by Title TI of the ADA?
The Title II regulation covers "public entities," effective
January 26, 1992.
"Public entities" include any State or local government and any
of its departments, agencies, or other instrumentalities
All activities, services, and programs of public entities are
covered, including activities of State legislatures and courts, town
meetings, police and fire departments, motor vehicle licensing, and
employment. Unlike Section 504 of the Rehabilitation Act of 1973,
which only covers programs receiving Federal financial assistance,
Title II extends to all the activities of State and local
governments whether or not they receive Federal funds.
Public transportation services operated by State and local
governments are also covered by Title II. Regulations of the
Department of Transportation establish specific requirements for
transportation vehicles and facilities, including a requirement that
all new buses must be equipped to provide services to people who use
wheelchairs
General Requirements
State and local governments may not refuse to allow a person with
a disability to participate in a service, program, or activity
because the person has a disability.
Programs and services must be provided in an integrated setting,
unless separate or different measures are necessary to ensure equal
opportunity.
State and local governments must eliminate unnecessary
eligibility standards or rules that deny individuals with
disabilities an equal opportunity to enjoy their services, programs
or activities unless they are "necessary" for the provision of the
service, program or activity.
Requirements that tend to screen out individuals with
disabilities, such as requiring a driver's license as the only
acceptable means of identification, are also prohibited.
Safety requirements that are necessary for the safe operation of
the program in question, such as requirements for eligibility for
drivers' licenses, may be imposed if they are based on actual risks
and not. on mere speculation, stereotypes, or generalizations about
individuals with disabilities.
State and local governments are required to make reasonable
modifications in policies, practices, and procedures that deny equal
access to individuals with disabilities, unless a fundamental
alteration in the program would result.
Auxiliary aids and services must be furnished when necessary to
ensure effective communication, unless an undue burden or
fundamental alteration would result.
State and local governments may provide special benefits, beyond
those required by the regulation, to individuals with disabilities.
Special charges may not be placed on individuals with
disabilities to cover the costs of measures necessary to ensure
nondiscriminatory treatment, such as making modifications required
to provide program accessibility or providing qualified
interpreters.
State and local governments shall operate their programs so that,
when viewed in their entirety, they are readily accessible to and
usable by individuals with disabilities.
Qualified Individuals with Disabilities
Title II of the Americans with Disabilities Act provides
comprehensive civil rights protections for "qualified individuals
with disabilities."
An "individual with a disability" is a person who:
Physical or mental impairments include, but are not limited to,
such contagious and noncontagious diseases and conditions as
orthopedic, visual, speech, and hearing impairments; cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart
disease, diabetes, mental retardation, emotional illness,, specific
learning disabilities, HIV disease (whether symptomatic or
asymptomatic), tuberculosis, drug addiction, and alcoholism.
Homosexuality and bisexuality are not physical or mental impairments
under the ADA.
"Major life activities" include functions such as caring for
oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and working.
Individuals who currently engage in the illegal use of drugs are
not protected by the ADA when an action is taken on the basis of
their current illegal use of drugs.
A "qualified" individual with a disability is one who meets the
essential eligibility requirements for the program or activity
offered by a public entity. The "essential eligibility requirements"
will depend on the type of service or activity involved. For some
activities, such as State licensing programs, the ability to meet
specific skill and performance requirements may be "essential." For
other activities, such as where the public entity provides
information to anyone who requests it, the "essential eligibility
requirements" would be minimal.
Program Access
State and local governments must ensure that individuals with
disabilities are not excluded from services, programs, and
activities because buildings are inaccessible.
Physical barriers, such as stairs, in all existing buildings,
need not be removed, as long as they make their programs accessible
to individuals who are unable to use an inaccessible existing
facility.
Services, programs, and activities may be offered in the facility
to individuals with disabilities through alternative methods, if
physical barriers are not removed. Examples include:
Relocating a service to an accessible facility, e.g., moving a
public information office from the third floor to the first floor of
a building.
Providing an aide or personal assistant to enable an individual
with a disability to obtain the service.
Providing benefits or services at an individual's home, or at an
alternative accessible site.
Carrying an individual with a disability as a method of providing
program access is not permissible, except in "manifestly
exceptional" circumstances.
State and local governments are not required to take any action
that would result in a fundamental alteration in the nature of the
service, program, or activity or in undue financial and
administrative burdens. However, public entities must take any other
action , if available. that would not result in a fundamental
alteration or undue burdens but would ensure that individuals with
disabilities receive the benefits or services.
Integrated Programs
Public entities may not provide services or benefits to
individuals with disabilities through programs that are separate or
different, unless the separate programs are necessary to ensure that
the benefits and services are equally effective.
Even when separate programs are permitted, an individual with a
disability still has the right to choose to participate in the
regular program. State and local governments may not require an
individual with a disability to accept a special accommodation or
benefit if the individual chooses not to accept it.
Communications
State and local governments must ensure effective communication
with individuals with disabilities.
Where necessary to ensure that communications with individuals
with hearing, vision, or speech impairments are as effective as
communications with others, the public entity must provide
appropriate auxiliary aids.
"Auxiliary aids" include such services or devices as qualified
interpreters, assistive listening headsets, television captioning
and decoders, telecommunications devices for deaf persons (TDD's),
videotext displays, readers, taped texts, Braille materials, and
large print materials.
A public entity may not charge an individual with a disability
for the use of an auxiliary aid.
Telephone emergency services, including 911 services, must
provide direct access to individuals with speech or hearing
impairments.
Public entities are not required to provide auxiliary aids that
would result in a fundamental alteration in the nature of a service,
program, or activity or in undue financial and administrative
burdens. However, public entities must still furnish another
auxiliary aid, if available, that does not result in a fundamental
alteration or undue burdens.
New Construction and Alterations
Public entities must ensure that newly constructed buildings and
facilities are free of architectural and communication barriers that
restrict access or use by individuals with disabilities.
When a public entity undertakes alterations to an existing
building, it must also ensure that the altered portions are
accessible.
The ADA does not require retrofitting of existing buildings to
eliminate barriers, but does establish a high standard of
accessibility for new buildings.
Public entities may choose between two technical standards for
accessible design: The Uniform Federal Accessibility Standard (UFAS),
or the Americans with Disabilities Act Accessibility Guidelines
(minus the elevator exemption for small buildings).
Enforcement
Private parties may bring lawsuits to enforce their rights under
Title II of the ADA. The remedies available are the same as those
provided under Section 504 of the Rehabilitation Act of 1973. A
reasonable attorney's fee may be awarded to the prevailing party.
Individuals may also file complaints with appropriate
administrative agencies. The regulation designates eight Federal
agencies to handle complaints filed under Title II.
Complaints
Any individual who believes that he or she is a victim of
discrimination prohibited by the regulation may file a complaint.
Complaints on behalf of classes of individuals are also permitted.
Complaints should be in writing, signed by the complainant or an
authorized representative, and should contain the complainant's name
and address and describe the public entity's alleged discriminatory
action.
Complaints may be sent to:
- Disability Rights Section
U.S. Department of Justice
Civil Rights Division
950 Pennsylvania Ave., NW
Disability Rights Section, NYA
Washington, DC 20530
(202) 307-0663 (Voice and TDD)
Fax: (202) 307-1198
