This presentation is for legal information NOT legal advice. P UBLIC L IBRARIES AND THE ADA John Giacomantonio, Rising Third-Year Law Student at Indiana

This presentation is for legal information NOT legal advice.

PUBLIC LIBRARIES AND THE ADA

John Giacomantonio, Rising Third-Year Law Student at Indiana University Maurer School of Law and Summer Legal Intern at the

Indiana State Library

A Word of CautionI am a law student intern, not a lawyer.

That said, this presentation is to provide legal information NOT legal advice.

If you have questions about how the law applies to your specific factual situation, discuss this with your lawyer.

I will be happy to clarify points that I make in the presentation, but I cannot answer questions about facts specific to your library.

What will be covered?Background on the ADA

Legislative forerunners; Purposes; Definitions/Limitations.

Administrative ElementsNotice; ADA Coordinator; Grievance.

CommunicationsAccommodations; Internet.

BackgroundSection 504 of the Rehabilitation Act of

1973 (codified at 29 U.S.C. 794).Prohibited discrimination on the basis of disability by a

program receiving federal financial assistance.

ADA adopted the definition of “disability” used in Section 504.

Section 504 provided a basis for additional legislative activity and expansion of federal disability rights legislation.

BackgroundADA expanded on the Rehabilitation Act by

severing nondiscrimination on the basis of disability from the receipt of federal funds.

Images from Microsoft Clip art on Office Online

What does the ADA do?Provides, “a clear and comprehensive

national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. 12101(b) Provides an equal opportunity for disabled

individuals to participate in all aspects of society by fostering independence and integration.

Image from Microsoft Clip art on Office Online

Which entities are covered by the ADA?DefinitionsTitle I – EmploymentTitle II – Public ServicesTitle III – Public AccommodationsTitle IV – Miscellaneous Provisions

Don’t forget that the other titles are still the law, too, but this presentation limits the discussion to Title II.

Where do public libraries fit?• Title II impacts public libraries. See 42 USC

12131(1) (defining “public entity”).• As does Title I, but the scope of this presentation is

Title II.

• Preliminary Questions: 1.How many employees does the local government have in total?

a. 50 or more, orb. Less than 50

i. Both full and part time employees government-wide are counted but contractors are not.

2.Does the library (or any of its programs) receive federal assistance through grants?

a. Think about LSTA grants or the e-rate program.

No Discrimination on the Basis of Disability

General Requirements

42 U.S.C. 12102(A)A disability is defined as “a physical or

mental impairment that substantially limits one or more major life activities of such individual; a record of such impairment; or being regarded as having such impairment.” 42 U.S.C. 12102(A).

Definition of disability is to be construed broadly. See 42 U.S.C. 12102(4)(A).

Elements1. Physical or Mental Impairment

a. Must substantially limit one or more major life activities

i. Major life activities covers a lot of ground

2. Record of Such Impairment, or3. Regarded as having such impairment

If an individual falls within ONE of these categories then that person has a disability.

42 U.S.C. 12103(1)“Auxiliary Aids and Services”

Qualified interpreters (hearing-impaired)Qualified readers, taped texts, or other

effective methods (visually-impaired)Acquisition or modification of equipment or

servicesOther similar services and actions


42 U.S.C. 12132“[N]o qualified individual with a disability

shall, . . . be excluded . . . or be denied . . . the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

Public entities cannot prevent individuals with disabilities from accessing their programs, services, or activities.

Allow broad participation for everyone. Bring people in rather than screen them out.

28 C.F.R. 35.130(d)Federal regulations require that “[a] public

entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 CFR 35.130(d)

“Integration Mandate”

Crucial to achieving the ADA’s goals.

28 C.F.R. 35.130(b)(iv)Because integration is a major goal of the

legislation covered entities cannot “[p]rovide different or separate aids, benefits, or services to individuals with disabilities or to any class of individuals with disabilities”

But . . . if “such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others” a public entity can do so.

28 C.F.R. 35.130(e)(1)The ADA wants to let individuals with

disabilities make the choice about which accommodation they would like to have to participate in a program.

So . . .

An individual with a disability is not “required . . . to accept an accommodation, aid, service, opportunity, or benefit . . . which such individual chooses not to accept.”

Eligibility Criteria & Service Animals

28 CFR 35.130(b)(8)Another important point to stress is that a

public cannot use “eligibility criteria” that “screens our or tends to screen out” individuals with disabilities from participating in “any service, program or activity.”

But . . .

If “such criteria can be shown to be necessary for the provision of the service, program, or activity being offered” then eligibility criteria is acceptable.

Service AnimalsDogs! – Other wild animals, whether trained or

untrained do not qualify, but, in general, a public entity has to allow a disabled person to use a service animal.

Work or tasks performed by the animal must be directly related to the individual’s disability.


Service AnimalsMiniature horses, if properly trained, are

allowed, too. 28 C.F.R. 35.136(i).

Disabled individuals with service animals can take the animal in the same places where nondisabled go to access the entity’s programs, activities, or services, unless the animal is out of control or not housebroken.

Service Animals - InquiriesA public entity cannot ask about the

“nature or extent of a person’s disability” but it can make “two inquiries to determine whether an animals qualifies as a service animal.” 28 C.F.R. 35.136(f)

Do not ask for certification!Acceptable inquiries

1. If the animal is required because of a disability.

2. The work/task the animal has been trained to do.


Limitations

Limitations“A public entity shall make reasonable

modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 CFR 35.130(b)(7).

LimitationsFundamental Alteration

Undue Burden

These limitations are available only when a public entity has exhausted all of its options to make its programs, services, or activities accessible to qualified individuals with disabilities.


“Fundamental Alteration”Southeastern Community College v. Davis, 442

U.S. 397 (1979). Section 504 of the Rehabilitation Act case.

A nursing program did not have to provide “individual attention by a nursing instructor” during clinicals to allow her to participate in the nursing program. The student was hearing impaired.

In this case, the student was hearing impaired. The Court found that for the nursing program to take this action would be a “fundamental alteration” in the nature of a program [that] is far more than the regulation requires.”


“Fundamental Alteration”Public entity bears the burden of proving that

compliance would produce a fundamental alteration or undue burdenA decision as to fundamental alteration/undue

burden must be made by the head of the entity (or his/her designee).

This decision should be made after considering all available resources and there must be a written statement justifying the reasons for the conclusion.Even with this a public entity still has to make sure

individuals with disabilities have access to the program, service, or activity.

“Undue Burden”Title II does not define “undue burden” but . . . Title I refers to an “undue hardship requiring

significant difficulty or expense.” It then lists four factors to consider.

1. Nature and cost of the accommodation2. Overall financial resources of the entity3. Size of the business relative to its

employees and the number, type, and location of facilities

4. Type of operations For the full text of this section see 42 U.S.C.

12111(10).

Understanding and Complying with Title II

Administrative Elements

ComponentsADA Coordinator

See 28 CFR 35.107(a)

Notice of ADA ProvisionsSee 28 CFR 35.106

Grievance ProcedureSee 28 CFR 35.107(b)

ADA CoordinatorWho needs an ADA Coordinator?

• Required for public entities with more than 50 employees. “A public entity that employs 50 or more persons shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under this part . . . .” 28 CFR 35.107(a)

• Recommended for public entities with less than 50 employees. See ADA Tool Kit available at http://www.ada.gov/pcatoolkit/chap2toolkit.htm

What role does an ADA Coordinator serve?• Serves as a resource to consult about the ADA

and other disability related issues.

• Can be the primary contact when a disabled individual requests an auxiliary aid or service.

• Familiarity with alternative formats/technologies that help disabled individuals access information.

• For more information about ADA Coordinators see, http://www.ada.gov/pcatoolkit/chap2toolkit.htm at page 2.

Notice – 28 C.F.R. 35.106Lets the public know the entity is passing

along the information in the ADA regulations.

Lets the public know the ADA regulations apply to its services, programs, or activities.

Lets the public know the head of the entity is making them aware that they are protected against discrimination on the basis of disability.

NoticeApplies regardless of the entity’s size.

Public agency determines the best way of notifying the public.

Agency must make sure the notice is accessible to everyone.

The Department of Justice provides a sample notice at http://www.ada.gov/pcatoolkit/chap2toolkit.htm

NOTICE UNDER THE AMERICANSWITH DISABILITIES ACTIn accordance with the requirements of title II of the Americans with Disabilities Act of 1990 ("ADA"),

the [name of public entity] will not discriminate against qualified individuals with disabilities on the basis of disability in its services, programs, or activities.

Employment: [name of public entity] does not discriminate on the basis of disability in its hiring or employment practices and complies with all regulations promulgated by the U.S. Equal Employment Opportunity Commission under title I of the ADA.

Effective Communication: [Name of public entity] will generally, upon request, provide appropriate aids and services leading to effective communication for qualified persons with disabilities so they can participate equally in [name of public entity’s] programs, services, and activities, including qualified sign language interpreters, documents in Braille, and other ways of making information and communications accessible to people who have speech, hearing, or vision impairments.

Modifications to Policies and Procedures: [Name of public entity] will make all reasonable modifications to policies and programs to ensure that people with disabilities have an equal opportunity to enjoy all of its programs, services, and activities. For example, individuals with service animals are welcomed in [name of public entity] offices, even where pets are generally prohibited.

Anyone who requires an auxiliary aid or service for effective communication, or a modification of policies or procedures to participate in a program, service, or activity of [name of public entity], should contact the office of [name and contact information for ADA Coordinator] as soon as possible but no later than 48 hours before the scheduled event.

The ADA does not require the [name of public entity] to take any action that would fundamentally alter the nature of its programs or services, or impose an undue financial or administrative burden.

Complaints that a program, service, or activity of [name of public entity] is not accessible to persons with disabilities should be directed to [name and contact information for ADA Coordinator].

[Name of public entity] will not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the cost of providing auxiliary aids/services or reasonable modifications of policy, such as retrieving items from locations that are open to the public but are not accessible to persons who use wheelchairs.

Grievance ProceduresApplies to local governments with 50 or

more employees.

Law does not require an individual to first file an ADA complaint with the public agency before filing suit in federal court.

Title II and its implementing regulations do not spell out what should be in a grievance procedure, but . . .

Grievance ProceduresThe Department of Justice says the procedure

should include1. a description of how and where a complaint under Title

II may be filed with the government entity;2. if a written complaint is required, a statement notifying

potential complainants that alternative means of filing will be available to people with disabilities who require such an alternative;

3. a description of the time frames and processes to be followed by the complainant and the government entity;

4. information on how to appeal an adverse decision; and5. a statement of how long complaint files will be retained

Model Grievance Procedure

[Name of public entity]Grievance Procedure under

The Americans with Disabilities ActThis Grievance Procedure is established to meet the requirements of the

Americans with Disabilities Act of 1990 ("ADA"). It may be used by anyone who wishes to file a complaint alleging discrimination on the basis of disability in the provision of services, activities, programs, or benefits by the [name of public entity]. The [e.g. State, City, County, Town]'s Personnel Policy governs employment-related complaints of disability discrimination.

The complaint should be in writing and contain information about the alleged discrimination such as name, address, phone number of complainant and location, date, and description of the problem. Alternative means of filing complaints, such as personal interviews or a tape recording of the complaint, will be made available for persons with disabilities upon request.

The complaint should be submitted by the grievant and/or his/her designee as soon as possible but no later than 60 calendar days after the alleged violation to:

Model Grievance Procedure, cont’d

[Insert ADA Coordinator’s name]ADA Coordinator [and other title if appropriate]

[Insert ADA Coordinator’s mailing address]Within 15 calendar days after receipt of the complaint, [ADA Coordinator's name] or [his/her]

designee will meet with the complainant to discuss the complaint and the possible resolutions. Within 15 calendar days of the meeting, [ADA Coordinator's name] or [his/her] designee will respond in writing, and where appropriate, in a format accessible to the complainant, such as large print, Braille, or audio tape. The response will explain the position of the [name of public entity] and offer options for substantive resolution of the complaint.

If the response by [ADA Coordinator's name] or [his/her] designee does not satisfactorily resolve the issue, the complainant and/or his/her designee may appeal the decision within 15 calendar days after receipt of the response to the [City Manager/County Commissioner/ other appropriate high-level official] or [his/her] designee.

Within 15 calendar days after receipt of the appeal, the [City Manager/County Commissioner/ other appropriate high-level official] or [his/her] designee will meet with the complainant to discuss the complaint and possible resolutions. Within 15 calendar days after the meeting, the [City Manager/County Commissioner/ other appropriate high-level official] or [his/her] designee will respond in writing, and, where appropriate, in a format accessible to the complainant, with a final resolution of the complaint.

All written complaints received by [name of ADA Coordinator] or [his/her] designee, appeals to the [City Manager/County Commissioner/ other appropriate high-level official] or [his/her] designee, and responses from these two offices will be retained by the [public entity] for at least three years.

Program Accessibility

28 C.F.R. 35.150Facilities must be accessible to disabled

individuals. Exceptions for necessarily making each

existing facility accessible, altering a historic building, or “result[s] in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens”Keep in mind, a goal of the legislation is to make

facilities that provide access to a public entity’s programs, services, or activities available to everyone.

Communications

28 C.F.R. 35.160“A public entity shall take appropriate steps

to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.” [28 C.F.R. 35.160(a)]

To do this a public entity must furnish “appropriate auxiliary aids or services” so that an individual with a disability can participate in the public entity’s programs, services, and activities. [28 C.F.R. 35.160(b)(1)].

Providing Auxiliary Aids or Services“The type of auxiliary aid or service

necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.” [28 C.F.R. 35.160(2)]

Who chooses the aid or service?A public entity should give “primary

consideration” to the disabled individual’s request.

“[A]ids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.”28 C.F.R. 35.160(b)(2)

What can the public entity not do?1. Require that an individual with a

disability bring an interpreter.a. 28 C.F.R. 35.160(c)(1)

2. Rely on an adult accompanying a disabled individual to interpret.

a. 28 C.F.R. 35.160(c)(2)

3. Rely on a minor child to interpreta. 28 C.F.R. 35.160(c)(2)

But, there are exceptions to #2 . . .

Exceptions1. Emergency

Has to involve “an imminent threat” to “the safety or welfare of an individual or the public and no interpreter is available” [28 C.F.R. 35.160(c)(2)(i)]

2. Disabled individual requests the accompanying adult to interpret

Accompanying adult has to agree and it has to be appropriate. [28 C.F.R. 35.160(c)(2)(ii)]

Technology/InternetSection 508 of the Rehabilitation Act calls

for federal websites to be accessible by individuals with disabilities. States sometimes adopt this standard for

their use of technology, but it is different from the W3C accessibility standards.


Website Accessibility StandardsDepartment of Justice will issue a Notice of

Proposed Rule Making to require Title II entities to adopt website accessibility standards.

The Department anticipates releasing the notice in July 2013For more information see

http://www.gpo.gov/fdsys/pkg/FR-2010-07-26/pdf/2010-18334.pdf

The regulations cited in this presentation are the 2012 regulations – the CFR is updated at different points during the year, so in July 2013 ADA regulations will be updated.

SummaryWe covered a lot of ground today . . . we

discussed the background of the ADA, its goals, and some key definitions and limitations.

We also discussed access to programs and services, the use of service animals, and some internal steps for ADA compliance.

Finally, we discussed communication and internet technology.

Resourceshttp://www.w3.org/WAI/ http://www.w3.org/WAI/WCAG20/quickref/ (Standards to help guide making websites accessible)

http://www.gpo.gov/fdsys/pkg/USCODE-2011-title42/pdf/USCODE-2011-title42-chap126.pdf

(Text of the ADA; Title II begins at § 12131; Definitions begin at § 12101)

http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=3c89ad4795f2c0ffb52ae753e05c5251&rgn=div5&view=text&node=28:1.0.1.1.36&idno=28#28:1.0.1.1.36.2.32.7

(Code of Federal Regulations for Title II)

Resourceshttp://www.ada.gov/pcatoolkit/abouttoolkit.htm (Overview of the ADA)

http://www.ada.gov/ta-pubs-pg2.htm#2010 (Link to an assortment of technical assistance publications)http://www.ada.gov/taman2.html (Title II Technical Assistance Manual)

Contact [email protected]

Thank you all for attending today!

I will only be at ISL until July 31.

Remember, this presentation is for legal information NOT legal advice.

Documents

This presentation is for legal information NOT legal advice. P UBLIC L IBRARIES AND THE ADA John Giacomantonio, Rising Third-Year Law Student at Indiana