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In Legal Terms
- Convention Issue 2005
Counties should review for ADA compliance
In 1990, Congress passed the Americans with Disabilities Act, a federal law which, in its simplest terms, prohibits discrimination against persons with disabilities by requiring that employers make reasonable accommodations to employees or potential employees with qualifying disabilities, and by requiring that both public and private entities make their programs and facilities accessible to persons with disabilities. Under the law and federal regulations promulgated to implement the mandates of the law, public entities (including counties) were required to perform a review of all of their programs and facilities to determine how best to ensure that they were in compliance with this new federal law. The entities were to come up with a "transition plan" for completing necessary structural changes, and those changes were to have been completed no later than January 26, 1995.
The deadline for compliance with this important federal law was ten years ago, so why am I writing about it now? Unfortunately, it appears that several counties (and other public entities) have not come into full compliance with the requirements of the Act, at least with regard to structural modifications of existing facilities and/or the requirements to make all programs accessible to qualifying individuals, and this fact has recently led to an increase of lawsuits against governmental entities challenging the noncompliance. Additionally, the U.S. Justice Department has, in recent years, performed investigations which have uncovered areas of noncompliance, and has apparently increased its efforts at forcing counties, municipalities, and other governmental agencies to make necessary alterations in their facilities and programs.
Under these circumstances, it seemed like a good idea to remind counties of the mandates of this law, and to urge that concerted efforts be made to correct any deficiencies which may still exist. In fact, it may be a good idea for counties to retain someone who is an expert in this area - such as an architect or attorney with a good understanding of the ADA requirements - to perform a review of all facilities within the county, and to assist with a plan to come into compliance.1
I am not that expert, but perhaps it would be helpful to remind counties of a few of the basics to understanding the federal law. Section 202 of the Americans with Disabilities Act provides that:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.
The term "public entity" includes any state or local government and any department, agency, or other instrumentality thereof. A "qualified individual with a disability" is:
[A]n individual with a disability who, with or
without reasonable modifications to rules, poli-
cies, or practices, the removal of architectural,
communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the
essential eligibility requirements for the receipt of
services or the participation in programs or activities provided by a public entity."
Federal regulations implementing the provisions of the Americans with Disabilities Act (found at 28 C.F.R. § 35 et seq.) provide that, in the case of governmental programs, each service, program, or activity conducted, when viewed in its entirety, must be readily accessible to and usable by individuals with disabilities. A public entity is not required to make each of its existing facilities accessible; however, it must make its programs accessible in all cases, except where to do so would result in a fundamental alteration in the nature of the program or in undue financial and administrative burdens. This "undue burden" standard should not apply except in the most unusual cases.
The law does not require that every facility or every room in a facility be ADA compliant, but all services and programs must be accessible to individuals with disabilities and accessibility must be achieved in a manner which does comply with the law and its regulations. The regulations provide that a public entity may comply with its requirements through, among other things, redesign of equipment, reassignment of services to accessible buildings, delivery of services at alternate accessible sites, or other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. A public entity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance. However, in making alterations to existing buildings, the public entity must meet the accessibility requirements of the federal law and regulations.
As noted above, the law and regulations required that any structural changes in facilities which were to be made be completed within three years of the effective date of the regulations (January 26, 1995). Additionally, any construction of new or renovated facilities commenced after January 26, 1992 was to be designed and constructed in such manner that the facility would be readily accessible to and usable by individuals with disabilities.
You will likely hear much more in the coming months about the importance of taking whatever actions are necessary to bring your county into full compliance with the Americans with Disabilities Act, particularly with the fast growing number of lawsuits and Justice Department investigations. It is understood that compliance can be very costly, particularly in older buildings such as courthouses and jails where major modifications are required to make the buildings properly accessible to individuals with qualifying disabilities. However, the costs could escalate significantly if counties must add to that fines assessed by the federal government and/or the cost of attorney's fees (both for defending a lawsuit and for payment of the plaintiffs' attorneys). Therefore, counties should carefully consider expending the necessary funds now to avoid those additional costs in the future.
1 While certainly not an alternative to retaining an expert, I did learn quite a bit about the Americans with Disabilities Act, the structural requirements, and the reasoning for those requirements from the Justice Department's ADA web site - www.ada.gov. It is a very informative site which I recommend to anyone interested in learning more about the law and its requirements.
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