Is Your City or Town Meeting Its American with Disabilities Act (ADA) Responsibilities?

The information contained in this article is not intended as legal advice and may no longer be accurate due to changes in the law. Consult NHMA's legal services or your municipal attorney.

More than 55 million Americans—18% of our population—have disabilities. Like all Americans, they participate in a variety of programs, services, and activities provided by their state and local governments. The Americans with Disabilities Act (ADA) is a Federal civil rights law that prohibits discrimination against people with disabilities. Under this law, people with disabilities are entitled to all of the rights, privileges, advantages, and opportunities that others have when participating in civic activities.

The ADA protects the rights of people who have a physical or mental impairment that substantially limits their ability to perform one or more major life activities, such as speaking, breathing, walking, thinking, seeing, hearing, or working.  Title II of the ADA applies to all state and local governments and all departments, agencies, facilities, programs, and public entities. It applies to all programs, services, or activities of public entities, including access to courts, transportation, parks, and sidewalks.

Both the U.S. Department of Justice and U.S. Department of Transportation, through the State Departments of Transportation, are reemphasizing the importance and the necessity for cities and towns to be compliant with ADA laws.

Compliance

Being proactive is the best way to ensure ADA compliance. For example, many public entities have adopted a general ADA nondiscrimination policy, a specific policy on service animals, a specific policy on effective communication, or specific policies on other ADA-related accommodations. In addition, education and training is crucial. Staff members need instructions about how to access the auxiliary aids and services needed to communicate with people who have vision, hearing, or speech disabilities. Local officials should be familiar with the 2010 ADA Standards for Accessible Design (ADAAG) before undertaking any alterations or new construction projects. Training staff on the ADA, conducting periodic self-evaluations of the accessibility of the public entity’s policies, programs, and facilities, and developing a transition plan to remove barriers are other proactive steps to ensure ADA compliance.

There are some key requirements municipalities must be aware of. Municipalities with more than 50 employees are required to have a grievance procedure and to designate at least one responsible employee to coordinate ADA compliance. Although the law does not require the use of the term “ADA Coordinator,” it is commonly used by state and local governments across the country. The ADA Coordinator’s role is to organize the government entity’s efforts to comply with the ADA and investigate any complaints that the public entity has violated the ADA. The Coordinator serves as the point of contact for individuals to address any ADA concerns, to file a complaint, request auxiliary aids and services, and create policy modifications.

The 1991 ADA law required all public entities, regardless of size, to evaluate all of their services, policies, and practices and to modify any that did not meet ADA requirements. In addition, communities with 50 or more employees (including full, part-time, and seasonal employees) are required to develop a transitional plan detailing any structural changes that will be undertaken to achieve program access, and specifying a time frame for their completion. Public entities are also required to provide an opportunity for interested individuals to participate in the self-evaluation and transition planning processes by submitting comments. While the 2010 regulation does not specifically require public entities to conduct a new self-evaluation or develop a new transition plan, they are encouraged to do so. If a city or town with more than 50 employees does not already have a transitional plan, they are required to develop one. Towns with less than 50 employees are not required to have a formal transitional plan but they are still required to conduct a self-evaluation and remove any barriers in order to be ADA compliant.

No Exemptions

Municipalities may believe that their existing programs and facilities are protected by a “grandfather” clause from having to comply with the requirements of Title II of the ADA. Small towns may also believe that they are exempt from complying with Title II because of their size. However, there is no “grandfather” clause in the ADA and there is no exemption from Title II for small towns other than the requirements to develop and maintain transition plan and establishing a grievance procedure.

Many local governments often fail to ensure that the whole range of their services, facilities, sidewalks, curb ramps, accessible pedestrian signals, and other programs meet ADA Title II requirements. Title II requires local governments to ensure that all of their programs, services, and activities, when viewed in their entirety, are accessible to people with disabilities. Program access is intended to remove physical barriers to services, programs, and activities, but it generally does not require local governments to make each facility, or each part of a facility, accessible.

Resources

Technical assistance and resources are available to meet ADA requirements. Cities and towns can work their respective Regional Planning Commissions (RPCs) to utilize tools developed by the University of New Hampshire’s Technology Transfer Center in the collection of pedestrian infrastructure data.

The New Hampshire Municipal Association has posted two documents under the Training box on its website (www.nhmunicipal.org) specifically geared for small towns and cities to meet their ADA requirements.

The Department of Justice has established a technical assistance hotline (800.514.0301/voice and 800.514.0383/TTY) to answer questions about the ADA. Another source of ADA information is the Justice Department’s Home Page (www.ada.gov).

Jay Ankenbrock is Chief of Labor Compliance with the New Hampshire Department of Transportation. He can be reached at jankenbrock@dot.state.nh.us  or 603.271.2467.