FAQ: State and Local Government Access/Title II

Question:

Are there any limits on the kinds of modifications in policies, practices, and procedures required by the ADA?

Answer:

Yes. The ADA does not require modifications that would fundamentally alter the nature of the services provided by the public accommodation. For example, it would not be discriminatory for a physician specialist who treats only burn patients to refer a deaf individual to another physician for treatment of a broken limb or respiratory ailment. To require a physician to accept patients outside of his or her specialty would fundamentally alter the nature of the medical practice.

Question:

Does the ADA allow public accommodations to take safety factors into consideration when providing services to individuals with disabilities?

Answer:

Yes. The ADA specifically allows a public accommodation to exclude an individual, if that individual poses a direct threat to the health or safety of others that cannot be mitigated or significantly lessened by appropriate modifications in the public accommodation's policies or procedures, or by the provision of auxiliary aids.  When assessing direct threat, the assessment must be strictly based on valid medical analyses and/or other objective evidence, and not on speculation. A public accommodation is permitted to establish objective safety criteria for the operation of its business; however, any safety standard must be based on objective requirements rather than stereotypes or generalizations about the ability of persons with disabilities to participate in an activity.

For example: An adult person with tuberculosis desires to  provide tutoring to elementary school kids in a volunteer mentor program run by a local public school board. Title II allows the board to decline to permit 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 enrolled in the program, if the condition is contagious and the threat cannot be alleviated or eliminated by reasonable modifications in policies, practices, or procedures.

Question:

Will the ADA have any effect on the eligibility criteria used by public accommodations to determine who may receive services?

Answer:

Yes. If a criterion screens out or tends to screen out individuals with disabilities, it may only be used if necessary for the provision of services. Additionally, an agency must be careful of subtle forms of discriminatory practice.   For example, requiring a driver's license as the only acceptable form of identification when paying by  check could constitute discrimination against individuals with visual impairments or other conditions that may make a person ineligible to obtain licenses. To avoid potential discrimination, public entities must allow the use of alternative identification such as a state- issued identification card.

Question:

What changes must a public entity make to its existing facilities to make them accessible?

Answer:

A public entity must ensure that individuals with disabilities are not excluded from services, programs, and activities because its buildings are inaccessible.  A State or local government's programs, when viewed in their entirety, must be easily accessible to and usable by individuals with disabilities (i.e., individuals with disability should be able to use the products and services of the state agency). This standard, known as "program accessibility," applies to facilities of a public entity that existed on January 26, 1992. Public entities do not necessarily have to make each of their existing facilities accessible if the program, when viewed in its entirety, is accessible. But they should still provide program accessibility. This can be accomplished by a number of methods including, but not limited to, alteration of existing facilities, acquisition or construction of additional facilities, relocation of a service or program to an accessible location, or provision of services at alternate accessible sites.

Question:

Does the ADA apply to State and local governments?

Answer:

A. Title II of the ADA prohibits discrimination against qualified individuals with disabilities in all programs, activities, and services of public entities. It applies to all State and local governments, their departments and agencies, and any other instrumentalities or special purpose districts of State or local governments. It clarifies the requirements of section 504 of the Rehabilitation Act of 1973 for public transportation systems that receive Federal financial assistance, and extends coverage to all public entities that provide public transportation, whether or not they receive Federal financial assistance. It establishes detailed standards for the operation of public transit systems, including commuter and intercity rail (AMTRAK).