ADA Handbook - Title II

I. Who is covered by Title II of the ADA

"Public entities" which include any State and local government and any of its departments, agencies, or other instrumentalities.

All activities, services, and programs of public entities are covered, including activities of town meetings, police and fire departments, licensing and employment.

Public transportation services operated by the State and local governments are covered by regulation of the Department of Transportation (DOT). DOT's regulations establish specific requirements for transportation vehicles and facilities, including a requirement that all new busses must be equipped to provide services to people who use wheelchairs.

II. Overview of Requirements

State and local governments-

- May not refuse to allow a person with a disability to participate in a service, program or activity simply because the person has a disability.

- Must provide programs and services in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity.

- Must eliminate unnecessary eligibility standards or rules that deny individuals with disabilities an equal opportunity to enjoy their services, programs or activities unless "necessary" for the provision of the service, program, or activity.

- Safety requirements that are necessary for the safe operation of the program in question may be imposed if they are based on actual risks and not on mere speculation, stereotypes or generalizations about individuals with disabilities.

- 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.

- Must furnish auxiliary aids and services when necessary to ensure effective communication, unless an undue burden or fundamental alteration would result.

- May provide special benefits, beyond those required by the regulation.

- May not place special charges on individuals with disabilities to cover the costs of measures necessary to ensure nondiscriminatory treatment.

- Shall operate their programs so that, when viewed in their entirety, they are readily accessible to and useable by individuals with disabilities.

III. "Qualified Individuals with Disabilities"

Title II of the ADA provides comprehensive civil rights protection for "qualified individuals" with disabilities. An "individual with a disability" is a person who has a physical or mental impairment that substantially limits a major life activity, or Has a record of such impairment, or is regarded as having such an impairment.

Examples include but are not limited to, such 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 ( symptomatic or asymptotic ), tuberculosis, drug addiction, and alcoholism. Homosexuality and bisexuality are not covered under the ADA.

Major life activities include functions such as caring for oneself, performing manual tasks, walking, talking, seeing, hearing, speaking, breathing, learning, and working.

The ADA does not protect individuals who currently engage in the illegal use of drugs 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 the public entity.

The "essential eligibility requirements" will depend on the type of service or activity involved. Some may require specific skill and performance requirements such as licensing programs; while others essential eligibility requirements may be minimal, such as information requests.

IV. Program Access

State and local governments-

- Must ensure that individuals with disabilities are not excluded from services, programs, and activities because buildings are inaccessible.

- Need not remove physical barriers, such as stairs, in all existing buildings, as long as they make their programs accessible to individuals who are unable to use an inaccessible existing facility.

- Can provide services, programs, and activities offered in the facility to individuals with disabilities through alternative methods, if physical barriers are not removed, such as:

1.  Relocating a service to an accessible facility

2.  Providing an aide or personal assistant to enable an individual with a disability to obtain the service.

3.  Providing benefits or services at the individual's home, or at an alternative accessible site.

4.  May not carry an individual with a disability as a method of providing access, except in "manifestly exceptional" circumstances.

Public entities 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 other actions, if available, that would ensure that individuals receive the benefits or services.

V. Integrated Programs

Integration of individuals with disabilities into the mainstream of society is fundamental to the purpose of the ADA.

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.

VI. Communications

State and local governments must ensure effective communications 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.

These may include services or devices as qualified interpreters, assistive listening headsets, television captioning and decoders, telecommunications devices for deaf persons (TDDs), videotext displays, readers, taped texts, Brailed 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, hearing, or communication impairments.

VII. New Construction and Alterations

Public entities must ensure that newly constructed building 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.

VIII. Enforcement

Private parties may bring lawsuits to enforce their rights under Title II of the ADA.

Individuals may also file complaints with appropriate administrative agencies or with any federal agency that provides financial assistance to the program in question, or with the Department of Justice, which will refer the complaint to the appropriate agency.

IX. Complaints

Any individual who believes that he or she has been the target of discrimination prohibited by the regulation may file a complaint. Complaints on behalf of classes of individuals are also permitted.

Source:  The ADA Handbook, Appendix N, Title II Highlights