ADA Title II Technical Assistance Manual

The Americans with Disabilities Act

Title II Technical Assistance Manual, Covering State and Local Government Programs and Services

The following page includes text passages taken directly from the ADA Title II Technical Assistance Manual, supplemented with some [comments: specific to Electromagnetic Sensitive (‘EMS’) individuals]. EMS is a federally recognized disabled characteristic. Links to the original web page are in the Table of Contents, listed below.

The technical assistance manual addresses the requirements of title II of the Americans with Disabilities Act, which applies to the operations of State and local governments. This manual promotes voluntary compliance with the requirements not only of title II, but also of title III of the ADA, which applies to public accommodations . . .

The manual’s format is designed to be useful to the widest possible audience: it provides a focused, systematic description of the ADA’s requirements and avoids an overly legalistic style without sacrificing completeness.

Table of Contents: There are nine major sections:

II-1.2000 Public entity. A public entity covered by title II is defined as

  1. Any State or local government

  2. Any department, agency, special purpose district, or other instrumentality of a State or local government

Title II is intended to apply to all programs, activities, and services provided or operated by State and local governments.

II-2.1000 General.

Title II of the ADA prohibits discrimination against any "qualified individual with a disability." . . . Disabilities reached by title II are limited to those that meet the ADA’s legal definition — those that place substantial limitations on an individual’s major life activities.

Title II protects three categories of individuals with disabilities:

  1. Individuals who have a physical or mental impairment that substantially limits one or more major life activities;

  2. Individuals who have a record of a physical or mental impairment that substantially limited one or more of the individual’s major life activities; and

  3. Individuals who are regarded as having such an impairment, whether they have the impairment or not.

Physical impairments include physiological disorders or conditions affecting one or more of the following body systems: neurological; musculoskeletal; respiratory, cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine.

[comment: Dr. Neil Cherry: “The Soviets irradiated the U.S. Embassy with 20,000 to 250,000 microwatts per square meter of RF Microwave Radiation in Moscow between 1953 and 1978 . . . the dominant [resulting] cancers [for Embassy personnel] were brain tumor and leukemia and reproductive organ cancer. This study confirms that extremely low-level chronic microwave exposure is associated which very significant increases in illness and mortality in organs across the whole body, consistent with widespread cellular chromosome damage. A highly remarkable result is the dose-response relationship for a range of sicknesses. Despite the small numbers, the lack of long latency period and dilutionary factors, the data shows significant increases in: cardiac problems, neurological symptoms, altered blood cell counts, Increased chromosome aberrations, elevated cancer in children and adults and sickness increasing in a dose-response manner with years of residence.“]

II-2.4000 Substantial limitation of a major life activity.

To constitute a "disability," a condition must substantially limit a major life activity. Major life activities include such activities as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. Whether a person has a disability is assessed without regard to the availability of mitigating measures,

II-2.5000 Record of a physical or mental impairment that substantially limited a major life activity.

This protected group includes — a person who has a history of an impairment that substantially limited a major life activity but who has recovered from the impairment.

II-2.8000 Qualified individual with a disability.

To be qualified, the individual with a disability must meet the essential eligibility requirements for receipt of services or participation in a public entity’s programs, activities, or services with or without —

  1. Reasonable modifications to a public entity’s rules, policies, or practices

  2. Removal of architectural, communication, or transportation barriers

  3. Provision of auxiliary aids and services.

Title II protects any qualified individual with a disability involved in any capacity in a public entity’s programs, activities, or services.

II-3.2000 Denial of participation.

The ADA, like other civil rights statutes, prohibits the denial of services or benefits on specified discriminatory grounds. Just as a government office cannot refuse to issue food stamps or other benefits to an individual on the basis of his or her race, it cannot refuse to provide benefits solely because an individual has a disability.

ILLUSTRATION: A city cannot refuse to admit an individual to a city council meeting that is open to the public merely because the individual is deaf [comment: or has Electromagnetic Sensitivity (‘EMS’)].

II-3.3000 Equality in participation/benefits.

Individuals with disabilities must be provided an equally effective opportunity to participate in or benefit from a public entity’s aids, benefits, and services.

ILLUSTRATION: A deaf individual does not receive an equal opportunity to benefit from attending a city council meeting if he or she does not have access to what is said. [comment: Similarly, an EMS individual does not receive an equal opportunity to benefit from attending a city council meeting if the Council’s Room/hall/chambers are voluntarily exposed with manmade RF/MW radiation that prevents EMS individuals from attending.]

II-3.4000 Separate benefit/integrated setting.

The major principle of mainstreaming is individuals with disabilities must be integrated to the maximum extent appropriate.

II-3.6100 Reasonable modifications, General

A public entity must reasonably modify its policies, practices, or procedures to avoid discrimination.

II-3.10000 Maintenance of accessible features.

Public entities must maintain in working order equipment and features of facilities that are required to provide ready access to individuals with disabilities. [comment: The building must have the ability to turn off all sources of manmade RF/MW radiation that prevents EMS individuals from entering or using the building in order to not discriminate against EMS individuals wishing to participate fully in the democratic process]. Where a public entity must provide an accessible route, the route must remain accessible.

II-3.11000 Retaliation or coercion.

Individuals who exercise their rights under the ADA, or assist others in exercising their rights, are protected from retaliation. The prohibition against retaliation or coercion applies broadly to any individual or entity that seeks to prevent an individual from exercising his or her rights or to retaliate against him or her for having exercised those rights.

II-5.1000 Program Accessibility General.

A public entity may not deny the benefits of its programs, activities, and services to individuals with disabilities because its facilities are inaccessible. A public entity’s services, programs, or activities, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities. This standard, known as "program accessibility," applies to all existing facilities of a public entity.

ILLUSTRATION: When a city holds a public meeting in an existing building, it must provide ready access to, and use of, the meeting facilities to individuals with disabilities.

Are there any limitations on the program accessibility requirement?
Yes. A public entity does not have to take any action that it can demonstrate would result in a fundamental alteration in the nature of its program or activity or in undue financial and administrative burdens. This determination can only be made by the head of the public entity or his or her designee and must be accompanied by a written statement of the reasons for reaching that conclusion.

The determination that undue burdens would result must be based on all resources available for use in the program. If an action would result in such an alteration or such burdens, the public entity must take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits and services of the program or activity.

II-5.2000 Methods for providing program accessibility.

Public entities may achieve program accessibility by a number of methods. In many situations, providing access to facilities through structural methods, such as alteration of existing facilities and acquisition or construction of additional facilities, may be the most efficient method of providing program accessibility. The public entity may, however, pursue alternatives to structural changes in order to achieve program accessibility. Nonstructural methods include acquisition or redesign of equipment, assignment of aides to beneficiaries, and provision of services at alternate accessible sites.

When choosing a method of providing program access, a public entity must give priority to the one that results in the most integrated setting appropriate to encourage interaction among all users, including individuals with disabilities.

Barriers must be removed from places of public accommodation under title III where such removal is "readily achievable," without regard to whether the public accommodation’s services can be made accessible through other methods.

II-5.6000 Time periods for achieving program accessibility.

Public entities must achieve program accessibility. If structural changes are needed to achieve program accessibility, they must be made as expeditiously as possible.. This three-year time period is not a grace period; all changes must be accomplished as expeditiously as possible. A public entity that employs 50 or more persons must develop a transition plan, setting forth the steps necessary to complete such changes.

II-6.1000 New Construction And Alterations, General.

All facilities designed, constructed, or altered by, on behalf of, or for the use of a public entity must be readily accessible and usable by individuals with disabilities.

On December 21, 1992, the Access Board published proposed title II accessibility guidelines that will generally adopt Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (‘ADAAG’} for State and local government facilities. The proposed guidelines also set specific requirements for judicial, legislative, and regulatory facilities; detention and correctional facilities; accessible residential housing; and public rights-of-way.

II-8.1000 Administrative Requirements, General.

Title II requires that public entities take several steps designed to achieve compliance. These include the preparation of a self-evaluation. In addition, public entities with 50 or more employees are required to —

  1. Develop a grievance procedure
  2. Designate an individual to oversee title II compliance
  3. Develop a transition plan if structural changes are necessary for achieving program accessibility

Once a public entity has identified its policies and practices, it should analyze whether these policies and practices adversely affect the full participation of individuals with disabilities in its programs, activities, and services. In this regard, a public entity should be mindful that although its policies and practices may appear harmless, they may result in denying individuals with disabilities the full participation of its programs, activities, or services.

II-8.2000 Self-evaluation.

All public entities subject to title II of the ADA must complete a self-evaluation.

A public entity must review its policies and practices to determine whether any exclude or limit the participation of individuals with disabilities in its programs, activities, or services. Such policies or practices must be modified, unless they are necessary for the operation or provision of the program, service, or activity. The self- evaluation should identify policy modifications to be implemented and include complete justifications for any exclusionary or limiting policies or practices that will not be modified.

If a public entity identifies policies and practices that deny or limit the participation of individuals with disabilities in its programs, activities, and services, when should it make changes? Once a public entity has identified policies and practices that deny or limit the participation of individuals with disabilities in its programs, activities, and services, it should take immediate remedial action to eliminate the impediments to full and equivalent participation.

II-8.3000 Transition plan.

A public entity with 50 or more employees must do a transition plan that provides for the removal of these barriers.

Must the transition plan be made available to the public?

If a public entity has 50 or more employees, a copy of the transition plan must be made available for public inspection.

What are the elements of an acceptable transition plan?

A transition plan should contain at a minimum

  1. A list of the barriers in a public entity’s facilities that limit the accessibility of its programs, activities, or services to individuals with disabilities;
  2. A detailed outline of the methods to be utilized to remove these barriers and make the facilities accessible;
  3. The schedule for taking the necessary steps to achieve compliance with title II. If the time period for achieving compliance is longer than one year, the plan should identify the interim steps that will be taken during each year of the transition period; and,
  4. The name of the official responsible for the plan’s implementation.

II-8.5000 Designation of responsible employee and development of grievance procedures.

A public entity that employs 50 or more persons shall designate at least one employee to coordinate its efforts to comply with and fulfill its responsibilities under title II, including the investigation of complaints. A public entity shall make available the name, office address, and telephone number of any designated employee.

In addition, the public entity must adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging any action that would be prohibited by title II.

II-9.1000 Investigation Of Complaints And Enforcement, General.

Individuals wishing to file title II complaints may either file —

  1. An administrative complaint with an appropriate Federal agency

  2. A lawsuit in Federal district court.

II-9.2000 Complaints.

A person or a specific class of individuals or their representative may file a complaint alleging discrimination on the basis of disability.

Is there a time period in which a complaint must be filed?

Yes. A complaint must be filed within 180 days of the date of the alleged act(s) of discrimination, unless the time for filing is extended by the Federal agency for good cause. As long as the complaint is filed with any Federal agency, the 180-day requirement will be considered satisfied.

Where should a complaint be filed? A complaint may be filed with either —

  1. Any Federal agency that provides funding to the public entity that is the subject of the complaint;

  2. A Federal agency designated in the title II regulation to investigate title II complaints;

  3. Department of Justice: All programs, services, and regulatory activities relating to law enforcement, public safety, and the administration of justice, including courts and correctional institutions; commerce and industry, including general economic development, banking and finance, consumer protection, insurance, and small business; planning, development, and regulation (unless assigned to other designated agencies); State and local government support services (e.g., audit, personnel, comptroller, administrative services); all other government functions not assigned to other designated agencies. Complaints should be sent to: Coordination and Review Section, P.O. Box 66118, Civil Rights Division, U.S. Department of Justice, Washington, D.C. 20035-6118.

  4. Department of the Interior: All programs, services, and regulatory activities relating to lands and natural resources, including parks and recreation, water and waste management, environmental protection, energy, historic and cultural preservation, and museums. Complaints should be sent to: Office for Equal Opportunity, Office of the Secretary, Department of the Interior, 18th & C Streets, N.W., Washington, D.C. 20547.

Where should a complaint be filed if more than one designated agency has responsibility for a complaint because it concerns more than one department or agency of a public entity? Complaints involving more than one area should be filed with the Department of Justice.