I. Findings and Recommendations Regarding the Department of Justice (Chapter 2)

Finding 1: Several Disability Rights Section (DRS) staff members interviewed for this report expressed concern about the number of administrative reviews affecting various stages of decision making about cases, the limited autonomy of line professional staff, and the separation of DRS from the main offices of the Civil Rights Division.

Examples of their concerns included the following:

The delays that result, in part, from the multiple levels of review imposed by the administrative structure on decision making with respect to settlement and litigation;

Managerial review of settlements and some correspondence that may not be necessary;

The separation of the physical location of DRS from the main offices of the Civil Rights Division and the Department of Justice, and from most of the other sections in the Civil Rights Division, which hampers collaboration, integration, and understanding of disability issues across the sections of the Civil Rights Division.

Recommendation 1: The management, line attorneys, and other staff members of DRS should conduct a collaborative examination of DRS internal operations to determine how the concerns identified can be alleviated, where procedures can be streamlined, how staff members can be given the maximum autonomy feasible in carrying out their responsibilities to increase performance, and how DRS can ensure that it gets the maximum benefit of the input and abilities of its staff members, including those who have disabilities.

Recommendation 2: To the extent feasible, all sections of the Civil Rights Division should be housed in the same physical location in order to increase collaboration across sections and enable the communication of disability issues as part of a shared culture of civil rights. If the division cannot achieve a unified physical location of the sections, it should develop and activate mechanisms to foster cross-sectional interaction and cross-pollination, and to promote other sections' awareness and understanding of disability issues and sensitivities.

Finding 2: DOJ provides policy guidance primarily through its litigation and technical assistance activities.

Guidance is provided by letters issued in response to specific inquiries. Although these express interpretation, they are not binding and do not constitute formal statements of departmental position having visibility and persuasive value to courts and lawyers in a manner similar to the EEOC's subregulatory enforcement guidance.

Finding 3: DOJ has been extremely slow in issuing regulations based on the Access Board's ADA accessibility guidelines; it has delayed inordinately in issuing regulatory accessibility standards for state and local government facilities and for children's facilities.

Recommendation 3: DOJ should establish and commit itself to meet a prompt timeline for issuing regulatory standards based upon Access Board guidelines; in particular, DOJ should promptly issue the long-delayed regulatory accessibility standards for state and local government facilities and for children's facilities.

Finding 4: Titles II and III of ADA assign DOJ authority for receiving and investigating complaints, but DOJ's responsibilities for enforcing Title III of ADA differ somewhat from the complaint-processing role of the EEOC under Title I. While DOJ ADA complaint-processing procedures continue to evolve and appear to be improving, there are still problems.

DOJ refers or resolves nearly every Title II complaint but does not open for investigation most Title III complaints.

Title III complaints are too often sent to mediation or returned to the complainant with a do-not-open letter indicating that DOJ will not investigate.

While procedures used by DOJ for enforcing Title III are consistent with requirements of ADA, many people have the impression that filing with DOJ is similar to filing with the EEOC, that is, that all complaints will be investigated and "something" done with them. In fact, DOJ does not conduct its Title III enforcement in this manner, but is much more selective in the cases that it handles. The view that DOJ "does nothing" is a result of the mismatch of expectations and procedure.

DOJ does not communicate quickly or regularly with complainants on the status of their complaints. Some complainants received no acknowledgment or other communication from DOJ for over a year following the submission of complaints until DOJ informed them that their complaints would not be investigated.

DOJ can be slow in referring complaints under Title II to the appropriate designated agency.

The length of time that elapses in the complaint handling process puts complainants at risk of losing their private right to sue because the statute of limitations may run out.

Recommendation 4: DOJ should continue to improve its complaint-processing procedures and performance.

Critical goals include speedier processing of complaints, better and more frequent communication with complainants, providing complainants with better information about the nature of the complaint processing process and DOJ responsibilities for the particular type of complaint at issue, and conforming with time frames of statutes of limitations for complainants to pursue private suits.

Recommendation 5: DOJ should make strong efforts to communicate to people with disabilities and the general public that it does not have the legal responsibility to and will not investigate every Title III complaint but rather will use complaints to identify pattern or practice issues or issues of general public importance.

Every Title III complainant should receive a letter within six weeks of filing, acknowledging receipt of the complaint, explaining DOJ's complaint-handling process, and clarifying that DOJ does not investigate every Title III complaint it receives.

Recommendation 6: DOJ should develop mechanisms that would significantly increase opportunities for the disability community to provide input regarding priority areas under Title II and Title III of ADA, including complaint-processing, compliance monitoring and technical assistance activities, and enforcement actions.

Finding 5: DOJ is sending increasing numbers of Title II and III complaints to mediation and has received additional funding to increase and modify mediation activities.

Prior to July 1999, DOJ pursued mediation through a grant to an external provider and pro bono mediators. With new funds for mediation, DOJ has entered into a service contract with the outside organization and now pays mediators.

DRS reports great satisfaction with how mediation is working and the outcomes it is achieving for complainants.

To the extent that the contractor identifies problems or shortcomings in the current mediation process, the current contract calls for the contractor to propose solutions.

Most mediations have involved Title III complaints. Of those referred, the parties engage in mediation in approximately 80 percent of the cases referred; in 63 percent of cases referred for mediation in which the parties agree to mediate, the cases are settled.

DOJ does not involve itself in the mediation process as a party, through oversight of the legality of the outcome, or as a signatory to the agreement for enforcement purposes.

Some contend that a problem with mediation is that it too frequently produces relief for the complainant without correcting the underlying illegal practices of the respondent.

Recommendation 7: As it expands its mediation program, DOJ should provide greater oversight of the mediation activities and of the settlements achieved through mediation, including the following:

DOJ should fund by contract a systematic study of how its ADA mediation is working, including an assessment of the extent to which the rights of persons with disabilities are being protected in the mediation process, of whether mediators are sufficiently skilled and trained, and of whether mediation agreements achieve results that are satisfactory to the parties, comply with the legal requirements of ADA, and are implemented. The study should include interviews with mediators to ascertain if they need additional training and should include a review of results of mediations completed to date, of mediation agreements that have resulted, and of implementation of terms agreed to.

DOJ should adopt standards along the lines of the "ADA Mediation Guidelines" to govern mediations of ADA disputes.

DOJ should provide or fund additional ADA training of mediators.

DOJ should develop and fund a cadre of trained and paid mediation advocates to support complainants through mediation.

Finding 6: Data collection and analysis in DRS is not organized well and has various deficiencies, including the following:

Considerable data are missing from the complaint database; the complaint database does not track details of case processing (including cases sent to mediation); and data are not entered on a timely basis.

Only opened cases are entered in the database, so DRS does not know the total number of complaints received, even if not all are opened.

The existing database is not useful for analysis of past performance, nor for DRS planning purposes, such as anticipating the flow of complaints, issues, etc.

No publicly available database of Title II and III complaint-handling and litigation exists.

Recommendation 8: DOJ should dramatically improve its collection, data-entry, and data-analysis processes with regard to the complaint database; improvements should include the entry of complete data; expanding the database to track the disposition and outcome of all complaints, not just those opened by DOJ; periodically analyzing the data to identify trends and problems with complaint handling; and making appropriate data on Title II and III complaint handling and outcomes available to the public in an accessible and usable format.

Finding 7: Under Title II, much of the complaint handling is to be performed by the appropriate cabinet agency from among the seven specifically designated in ADA regulations. While these agencies are to process the complaints, violations or pattern or practice issues are to be referred to DOJ for litigation. The referral process is not monitored well by DOJ and has resulted in few Title II cases in which the Federal Government is the plaintiff.

DOJ is slow to refer complaints to the designated referral agencies.

When DOJ sends complaints it receives to a designated agency, it often receives back a report on the disposition. However, DOJ does not always follow up on referred complaints. Moreover, it does not track the Title II complaints that are received directly by the agencies.

DOJ referral agencies seldom refer cases to DOJ for litigation; the Department of Education has referred one case, Health and Human Services has referred one or two cases, and HUD and DOT have referred no Title II cases to DOJ for litigation.

Recommendation 9: DOJ should improve its handling of referrals of Title II complaints to the designated agencies in the following ways:

DOJ should refer complaints to the designated agencies more promptly.

DOJ should increase its tracking and oversight of Title II complaints, both those it receives directly and refers, and those complaints that are filed directly at a designated agency.

Finding 8: DOJ got a slow start in certifying state and local building codes; now that it has developed a methodology and gained familiarity with the task, however, it is certifying codes more quickly.

DOJ is engaging in outreach to states and municipalities to encourage them to submit their codes for certification.

Finding 9: DOJ has made limited use of its statutory authority to perform compliance reviews of covered entities under Title III, nor has it made much use of its authority to conduct compliance reviews of entities covered by Title II.

Recommendation 10: DOJ should increase its compliance review activities and make creative use of accessibility surveys, testers, and other proactive techniques for identifying and remedying violations of ADA by covered entities. With the input of the disability community, DRS should identify priority areas for performing such reviews, taking into account the frequency, extent, and harmfulness of particular types of noncompliance, along with the degree to which particular types of noncompliance are less likely to be effectively addressed and remedied through individual complaints.

Finding 10: DOJ (DRS) litigates relatively few cases. DOJ participates as amicus in more cases than it initiates as a party, and more DOJ cases are settled than are litigated.

DRS litigation involves initiating cases as the plaintiff, intervening in private litigation, or participating as amicus curiae. DRS has not initiated a lawsuit as plaintiff in a single Title II case.

DRS litigation has focused on chain entities (fast food restaurants, hotels) and on large entities in entertainment and recreation (stadiums, racetracks); some have questioned whether these represent the most important issues that affect access in everyday life and participation in the community.

Litigation activities have focused on ADA constitutionality questions and some important interpretive issues in the area of franchisors and funding and placement issues involving institutions; a broad vision for strategic litigation is not evident.

Cases developed by DRS are more often settled than litigated. DRS should continue to use settlement where appropriate and should seek full remedies, including damages and civil penalties.

DOJ's intervention in private litigation is sometimes too late to be helpful.

Finding 11: DOJ is cautious in its choices of ADA cases to litigate.

DOJ cites a concern about creating bad case law as a reason for caution in pursuing ADA litigation.

DRS has litigated in a variety of areas; many perceive this approach as avoiding hard issues and cases against big or powerful entities.

Concern about negative media reaction, especially in the business press, appears to influence decisions about cases for litigation and positions in settlement negotiations.

Recommendation 11: DOJ should maintain the highest standards of vigorous ADA enforcement in deciding when and whether to settle cases.

Recommendation 12: DOJ should pursue a more aggressive program of litigation.

Recommendation 13: DRS should seek input from the disability community to obtain the views of people with disabilities regarding the prioritization of topics and issues for litigation.

Finding 12: DOJ has engaged in various public education and technical assistance efforts regarding ADA.

Principal modes of technical assistance include ADA Information Hotline, an ADA Home Page, the development and dissemination of technical assistance documents, a speakers bureau, a traveling ADA display, a technical assistance grants program, and interagency coordination.

An accessible ADA Web site contains information about how to contact ADA hotline, a list of ADA technical assistance documents, ADA regulations and information about newly proposed or issued regulations, information about building code certification, a complaint form for Title II or III complaints (to be printed and mailed, not e-mailed), and information on settlements, as well as all current downloadable TA publications, reports and information on settlement agreements, and links to TA letters and press releases and other federal agencies' ADA Web sites.

Technical assistance publications include materials written by DOJ, publications produced under contract with other groups, and publications produced in coordination with other federal agencies. DOJ distributes these materials until they run out. Some materials from earlier contracts with outside groups are no longer available; others are available from the original source.

Recommendation 14: DOJ also should publish the following information on its ADA Web site:

Statistics on complaint processing (similar to the EEOC reporting on the nature of complaints and complainants and on complaint resolution)

Summary data on the litigation docket

Statistics about litigation and enforcement efforts of the Civil Rights Division as a whole (and each of the sections), directed to the various types of discrimination prohibited by federal civil rights laws.

The DREDF ADA hotline number

Finding 13: DOJ has not done enough in its public defense of ADA.

DOJ has not engaged in an aggressive, positive media effort to combat negative and inaccurate portrayals of the requirements and intent of ADA.

Finding 14: DOJ has taken strong and appropriate policy positions on various issues in cases it has litigated.

Examples include

Interpreting Title II broadly to cover all activities of state and local governments, such as prisons, arrest procedures, animal quarantine programs, zoning practices, and residential treatment and nursing facilities.

Arguing that compensatory damages are available for violations of Title II.

Advocating broad and inclusive interpretation of Title III coverage of public accommodations, to include, for example, the NCAA, PGA events, terms of insurance policies, cruise vessels (even those registered in a foreign country), and rental cars and shuttle bus services provided by rental car businesses.

Defending the constitutionality of ADA as appropriate legislation under both the Fourteenth Amendment and the Commerce Clause of the Constitution.

Challenging unnecessary inquiries by licensing authorities into an applicant's or licensee's disability in the context of professional licenses, including law and medical.

Interpreting the requirement of making reasonable modifications in policies, practices, and procedures of both state and local governments and places of public accommodations broadly to apply in a wide variety of settings, including the use of driver's licenses for identification purposes, the LSAT, and child care centers.

Contending that the Title III new construction accessibility requirement covers architects, contractors, and franchisors.

Finding 15: DOJ has made almost no use of its authority to issue additional regulations and subregulatory guidance under ADA.

Recommendation 15: DOJ should regularly issue subregulatory guidances and, as necessary, additional regulations to promote its policy stances, facilitate compliance, and guide the courts and other federal agencies. Among other matters, DOJ should

Underscore the application of Titles II and III of ADA to Web sites engaged in commerce, as part of its policy-making and enforcement responsibilities.

Issue policy guidance to clarify that information kiosks and other information transfer technologies must be accessible to people with disabilities, including people with visual impairments.

Issue policy guidance to require clearly that entities covered by Titles II and III must procure equipment and technology with accessibility features, including specifically ATMs and gas pumps.

Recommendation 16: DOJ/DRS should engage in strategic planning and evaluation, including consultation with the disability community, as the basis for developing a focused strategy for maximizing its impact on Title II and III enforcement.

Recommendation 17: DOJ should take a proactive leadership role with regard to implementing ADA requirement, recognized in the Olmstead decision, that treatment, training, habilitation, and other services provided for people with disabilities must be in the most integrated setting appropriate; in pursuit of this goal, DOJ should

Issue a subregulatory guidance interpreting the implications of the Olmstead ruling as requiring integrated settings in lieu of segregated institutions and nursing homes.

Prepare and implement a strategic plan for challenging states' violation of ADA's mandate to provide services in the most integrated settings appropriate to the needs of persons with disabilities, including the pursuit of litigation against noncomplying facilities.

Coordinate with and provide leadership to the Department of Health and Human Services and other federal agencies to ensure a unified federal policy requiring services to be provided in appropriate, integrated settings, and to obtain referrals to DOJ from other federal agencies of cases suitable for litigation.

Recommendation 18: The seven other designated agencies (the Department of Agriculture, the Department of Education, the Department of Health and Human Services, the Department of Housing and Urban Development, the Department of the Interior, the Department of Labor, and the Department of Transportation) should refer to the Department of Justice Title II cases suitable for litigation.

All of the designated agencies should make it a priority to refer appropriate Title II cases for litigation. The Department of Health and Human Services should make a particular effort to refer cases that involve enforcement of the integration requirement of Title II in its application to residential or treatment facilities for persons with disabilities.

Recommendation 19: DOJ should take a more proactive leadership role with regard to the application of ADA to discrimination in insurance; in pursuit of this goal, DOJ should

Issue a regulation or subregulatory guidance making it clear that unequal classification or treatment of individuals with disabilities with regard to insurance eligibility, premiums, or benefits not based upon bona fide actuarial data violates ADA.

Establish and fund a project to conduct research regarding insurance and actuarial procedures to identify what actuarial data and medical standards insurance companies assert to justify differential treatment of individuals with various disabilities; to assess how accurate, timely, and relevant the asserted justifying data are; and to develop independent data and information, available to the public, to serve as a comparative yardstick.

DOJ should initiate and intervene in more lawsuits challenging companies' use of actuarial data as in violation of ADA.

Finding 16: A shortage of fiscal and personnel resources has played a role in many of the shortcomings of DOJ ADA enforcement.

Recommendation 20: Congress should approve President Clinton's request for an approximately 20 percent increase in the annual budget of the Civil Rights Division, and DOJ should apply this increase proportionately to increase resources devoted to ADA enforcement. With these additional funds, DRS should enhance its performance and intensify its efforts with regard to enforcement areas in which it has fallen short because of resource limitations.

II. Findings and Recommendations Regarding the Equal Employment Opportunity Commission (Chapter 3)

Finding 17: The EEOC issued its regulations for the enforcement of Title I in a timely fashion and with input from the public and has issued a number of enforcement guidances and related policy documents to clarify Title I requirements.

Finding 18: The EEOC has developed National and Local Enforcement Plans that articulate the agency's strategies for utilization of its resources, including, specifically, aspects of its ADA enforcement activities.

Finding 19: EEOC processing of ADA charges is similar to its processing of charges under Title VII (race, sex, national origin).

Finding 20: The EEOC has initiated a number of administrative measures, applied across all statutes of enforcement, to increase the speed of its charge processing, focus its enforcement strategically, and produce resolutions through mediation.

Finding 21: Decisions about litigation priorities have been made at EEOC headquarters in the Office of the General Counsel or by the EEOC commissioners. Currently, the commissioners are responsible for making decisions on whether or not the EEOC will litigate ADA cases; these decisions have predominantly favored cases having individual plaintiffs in lieu of class action suits.

Finding 22: The processes of investigating, developing, and selecting cases to recommend for litigation and the actual litigation of cases have been primarily the responsibility of the individual district offices of the EEOC, with little collaboration or communication between the district offices.

Finding 23: The EEOC promptly initiated ADA training of its staff and ADA consumers. It has continued to update staff training as ADA matures.

Finding 24: The EEOC has provided technical assistance in the form of training, speakers, and written materials to other federal agencies and to employers. It has reached members of the disability community to a lesser extent and has not targeted specific groups such as persons from diverse cultural backgrounds, rural residents, or youth with disabilities.

Finding 25: The EEOC has not taken a sufficiently active role in responding to negative and inaccurate media and other public comments about ADA.

Recommendation 21: The EEOC should ensure that local enforcement plans are fully consistent with the National Enforcement Plan and the priorities it establishes.

Recommendation 22: The EEOC should do a better job of explaining to the public and to complainants the FEPA role in charge processing.

Recommendation 23: The EEOC should offer more support, oversight, and training to the staff of the Fair Employment Practices Agencies where ADA enforcement is performed under contract.

Recommendation 24: As the EEOC continues to expand its use of alternate dispute resolution, it should engage in a careful evaluation of how mediation is working and should adopt standards along the lines of the "ADA Mediation Guidelines" to govern mediations of ADA disputes.

Recommendation 25: The EEOC should develop a greater research and evaluation capacity, either in-house or through research contracting, as a means of providing information useful to policy development, litigation, and charge processing.

Recommendation 26: The EEOC should develop a stronger collaboration with the OFCCP that might involve sharing information from compliance reviews or other strategies for proactive compliance or for pattern and practice enforcement.

Recommendation 27: The EEOC should litigate more class action suits in appropriate circumstances for the enforcement of ADA.

Recommendation 28: The EEOC should continue and enhance its initiatives to attain a team approach on appropriate categories of ADA cases; teams of investigators and attorneys with particular expertise should be assembled across field offices and EEOC headquarters to pool resources and knowledge by conducting cross-office and cross-cutting investigations and litigation.

Recommendation 29: The EEOC should follow up ADA Supreme Court decisions with guidance and training for its field staff and for stakeholders on what the decisions mean for the enforcement of ADA.

Recommendation 30: The EEOC should initiate another round of consumer training about Title I to update the information of persons who may have been trained at an earlier point and to increase the cadre of persons who can themselves disseminate the training.

Recommendation 31: The EEOC should work to improve the understanding of disability issues and of ADA through increased training of the federal judiciary.

Recommendation 32: The EEOC should engage in increased outreach to the disability community. This outreach should involve a special effort to reach persons from diverse cultural backgrounds, rural residents, and youth with disabilities who are ready to move into employment.

Recommendation 33: The EEOC should devote greater attention and more resources to actively explaining ADA to the public in a positive manner.

Finding 26: The EEOC has taken strong, timely, and appropriate policy positions on various issues.

Examples include the following:

Providing in the interpretive guidance for its Title I regulation that whether an impairment exists or substantially limits a major life activity should be determined without regard to mitigating measures such as medicines or assistive or prosthetic devices.

Including, in the guidance memorandum on the definition of disability, as an example included within the "regarded as" prong of the definition of disability, a person with genetic predisposition to disease or disability.

Issuing its groundbreaking and helpful Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities.

Multifaceted efforts, including enforcement guidance and litigation, related to the issue of judicial estoppel.

Taking, with only a few exceptions, sound policy positions supported by cogent analysis in its litigation activities.

Finding 27: The accessible, user-friendly style of the EEOC's enforcement guidances, with numerous concrete examples, provides an excellent model for all ADA guidance documents.

Recommendation 34: The other ADA enforcement agencies should seek to employ the readable, example-filled, accessible style of the EEOC's enforcement guidances.

Finding 28: The EEOC's performance of its policy leadership role regarding the enforcement of Title I of ADA has fallen short in a number of instances.

Recommendation 35: The EEOC should take a dynamic leadership role in ensuring the vigorous, full, and timely implementation of Title I requirements in complete fulfillment of the spirit and language of ADA and should adopt proactive positions that will further to the greatest possible extent the elimination of discrimination prohibited by ADA and the achievement for American workers and job-seekers with disabilities of the "equality of opportunity, full participation, independent living, and economic self-sufficiency" that Congress declared was ADA's purpose.

The EEOC should review its current policy positions and revise those that are not consistent with ADA's general purposes and the specific language and spirit of Title I's provisions. It should also engage in strategic planning to identify and "get ahead of the curve" on current and upcoming issues. It should not create or maintain any restrictions on ADA protection or on the rights afforded employees or job applicants that are not imposed by the statute itself.

Finding 29: The EEOC has repeatedly taken unnecessarily restrictive positions regarding the definition of "disability" and has erected obstructions that have impeded persons who seek to claim the protection of ADA.

The EEOC developed class-of-jobs-or-broad-range-of-jobs and single-particular-job- is-not-sufficient criteria not found in the statutory language of ADA, and remained silent when some courts started applying these criteria under the second and third prongs of the definition in addition to the first. While the EEOC made some efforts to ameliorate the harshness of its stance, it never corrected the central defect, that its criteria require complainants to prove what was in the mind of an employer-an onerous evidentiary burden. The EEOC's confined, technical approach to the definition of disability helped to create a judicial climate that eventually culminated in the decisions of the Supreme Court in the Sutton, Murphy, and Kirkingburg cases restrictively construing the definition.

The EEOC also imposed a duration limitation on ADA Title I protection that Congress had not seen fit to establish, and that neither the Department of Transportation nor the Department of Justice found necessary.

Recommendation 36: The EEOC should reorient its policy positions on the interpretation of the definition of disability and take clear and explicit actions to mitigate the impact of its previous restrictive positions and to promote, to the maximum extent possible, an inclusive interpretation of the scope of ADA protection to extend to all persons whom an employer disadvantages because they have a physical or mental impairment. At a minimum, the EEOC should

Issue subregulatory guidance clarifying that the third prong of the definition of individual with a disability includes any American who suffers discrimination on the basis of physical or mental impairment, even if that discrimination occurs on only one occasion in connection with one particular job with a particular employer, and explaining that the portions of the Sutton, Murphy, and Kirkingburg decisions interpreting the third prong of the definition represented an uninformed misapplication of first prong analysis to the third prong.

Issue subregulatory guidance explaining the Sutton, Murphy, and Kirkingburg decisions and seeking to confine the impact of these rulings to their particular factual contexts.

Pursue in litigation and in policy activities a proactive and concerted strategy of distinguishing the Sutton, Murphy, and Kirkingburg rulings as much as possible from other factual situations, with the goal of confining the impact of these rulings to their peculiar facts.

Issue subregulatory guidance elaborating on the Bragdon v. Abbott decision and stressing its broad, nontechnical interpretation of substantial limitations with regard to major life activities other than working.

Issue, as part of its responsibility to review the Title I regulation on the 10- year anniversary of ADA, a supplemental Title I regulation to (1) remove the duration limitation that its original regulation inserted as a standard in the determination of substantial limitation, and make it clear that a condition that an employer treats as substantial satisfies the definition no matter how temporary it may prove to be; and (2) promote an inclusive interpretation of the definition of disability and, in particular, the third prong of the definition.

Finding 30: The EEOC added a risk-of-harm-to-self component to the "direct threat" defense; Congress had specifically limited the defense to risks to "others."

Recommendation 37: The EEOC should issue, as part of its responsibility to review the Title I regulation on the 10-year anniversary of ADA, a supplemental Title I regulation to remove the risk-of-harm-to-self component from the direct threat defense, with interpretive guidance to explain why such a component is problematic and generally unnecessary.

Finding 31: The EEOC has largely remained silent on whether employers are required to provide reasonable accommodations for workers who satisfy the third prong of the definition of disability, that is, they are regarded by the employer as having a substantially limiting impairment.

Recommendation 38: The EEOC should clearly and forcefully declare that individuals who satisfy any of the three prongs of the "individual with a disability" definition are entitled to reasonable accommodations.

Finding 32: The EEOC's interim enforcement guidance on Disability-Based Distinctions in Employer-Provided Health Insurance presents an analysis that is convoluted and confusing, particularly as to who has to prove what, and does not make it clear that a health insurance distinction that disadvantages individuals with a particular disability or class of disabilities is discriminatory unless it is based on sound and legitimate actuarial data.

Recommendation 39: The EEOC should issue enforcement guidance that takes a clear position that any disadvantageous, differential treatment of individuals based on disability with regard to any type of insurance benefit that is not supported by sound, current, and legitimate actuarial data is prohibited by ADA.

This principle should be applicable to life insurance, accident insurance, disability insurance, liability insurance, health insurance, and other types of insurance. It should apply to differences in insurance programs' treatment of physical conditions and mental conditions, as well as to other differences based on disability.

Finding 33: The EEOC has not sufficiently addressed the issue of medical standards employed to make insurance determinations, nor has it examined the actuarial evidence insurance companies use to support such standards.

Recommendation 40: The EEOC should initiate a project to determine what medical standards are being applied by insurance companies; identify what actuarial data and information the medical standards insurance companies assert to justify the standards; assess how accurate, timely, and relevant the asserted justifying data are; and develop independent data and information to serve as a comparative yardstick.

Finding 34: Not enough is known about the medical standards and data employers rely on in making hiring, rehiring and return-to-work decisions.

Recommendation 41: The EEOC should initiate a project to determine what medical standards are being applied by employers in making hiring, rehiring, and return-to-work decisions, and to assess the reliability and relevance of such standards.

Finding 35: The EEOC has taken a compromising position that labor unions should be required to negotiate variances to protect workers' ADA rights instead of a principled legal position that ADA rights are not subject to limitation by the terms of collective bargaining agreements.

Recommendation 42: The EEOC should take a clear position that the rights and procedures guaranteed to applicants and workers under ADA are not subject to elimination or limitation by the terms of collective bargaining agreements.

Finding 36: The EEOC has shown that subregulatory guidance can be used very effectively to promote the implementation of Title I requirements; much more use of such guidance is needed.

Recommendation 43: The EEOC should make considerably more use of subregulatory guidance on a proactive basis; it should regularly identify issues and areas upon which additional direction and information are needed, and then should issue technical assistance materials or, as appropriate, subregulatory guidance providing such direction and information.

Additional guidance or technical assistance materials are needed to: (1) address particular areas of application of the reasonable accommodation requirement, such as technological accommodations, accommodations regarding transportation and parking, and additional clarification regarding working at home; (2) react to significant developments in the courts or elsewhere; (3) provide needed information and advice concerning particular categories of disabilities; and (4) provide additional direction regarding barrier removal and accommodations for people with sensory impairments, particularly impaired hearing and vision, including instruction to employers about designing universally accessible technologies. The EEOC may be able to adequately address some such issues through technical assistance materials and may not need to issue a guidance. The Commission should, however, systematically identify the various areas in which more direction and information are needed and then take timely action, by issuing guidances or producing technical assistance materials, to address the needs.

Finding 37: The EEOC has not engaged in any proactive strategies to address discrimination in the hiring process, a problem that charge processing does not address well. There is a critical need for assistance for employers in identifying and hiring qualified applicants with disabilities; employment rates of people with disabilities continue to be dismal.

Recommendation 44: The EEOC should place a priority on addressing problems faced by potential workers with disabilities in entering the workforce and securing appropriate jobs and should provide employers with guidance on how to eliminate barriers to people with disabilities in the application and hiring processes.

Recommendation 45: As the EEOC considers future amendments to its National Enforcement Plan, it should place a priority on facilitating the filing and handling of charges by individuals with particular categories of disabilities for whom EEOC litigation is occurring at a rate substantially under that expected in relation to their proportion of the population.

Finding 38: A shortage of fiscal and personnel resources has played a role in many of the shortcomings of EEOC ADA enforcement.

Finding 39: Despite substantially increased EEOC responsibilities associated with ADA enforcement beginning in 1992, the EEOC did not see an addition to its budget in real dollars until fiscal year 1999; even with recent budget increases, the EEOC's budget is still not sufficient to support a full array of strong and comprehensive ADA enforcement activities.

Recommendation 46: Congress should approve President Clinton's request for a 14 percent increase in the annual budget of the EEOC, and the EEOC should apply this increase proportionately to increase resources devoted to ADA enforcement. In conjunction with this funding increase, Congress should attach conditions on how the increased resources shall be used, including placing a priority on the following ADA enforcement activities:

investigating and processing additional charges

increasing ADA training

expanding and improving technical assistance

updating and maintaining the CDS database

overseeing and evaluating mediation efforts

making more culturally competent training and public education materials available, and

pursuing more strategic litigation, including class action suits.

III. Findings and Recommendations Regarding the Department of Transportation (Chapter 4)

A. Regarding the Federal Transit Administration (FTA)

Finding 40: FTAOCR, under its current leadership, has greatly increased the efficiency and procedural consistency of complaint processing. More public outreach efforts have also been instituted.

Finding 41: FTA complaint processing is still flawed in many areas. Understaffing, underfunding, and restrictions on the use of oversight funding for investigation of complaints have contributed to the problems cited below:

Complaint files are closed without monitoring that corrective action has been taken and often do not include a report of investigation with findings of fact, legal analysis, or indication of the applicable sections of the law.

Numerous complaints must be filed on ADA complementary paratransit capacity constraints to cause an investigation and finding of noncompliance.

Investigation never involves a site visit or consultation with persons or organizations other than the transit agency against which complaints have been filed. While FTAOCR receives funds for assessments, it receives no funds for complaint investigation.

FTA resolutions tend toward (1) the narrowest possible legal interpretation of the DOT ADA regulation; (2) considering the problem in isolation rather than looking at the situation systemically; (3) taking the transit agency at its word rather than conducting an investigation; and (4) interacting very little with the complainant and failing to consult with the disability community.

FTAOCR has been given no additional FTEs since responsibility for the enforcement of ADA transportation provisions was delegated in 1996.

Recommendation 47: Congress should adequately fund ADA enforcement activities to ensure the staff and other resources necessary for thorough follow-up on complaint handling, evidence of systemic violations derived from complaint data, and for conducting compliance reviews. Administrative restrictions on the use of oversight funds for complaint investigation should be removed.

Recommendation 48: Each complaint file should include a Report of Investigation with findings of fact, applicable sections of law, issues, and legal analysis. No complaint requiring corrective action should be closed without verification that the corrective action is taken, and this verification should be included in the complaint file.

Past complaints, closed without follow-up monitoring, should be reopened to verify whether corrective action agreed to by the transit authority was actually taken.

Recommendation 49: FTA should continue to improve its methods for tracking complaints in a manner that allows the analysis of patterns of practice in particular transit agencies as well as across the country as a whole.

Finding 42: Compliance reviews are seldom performed.

Recommendation 50: The tool of compliance reviews should be used for ADA fixed route and complementary paratransit situations where there appear to be significant ADA compliance problems.

Recommendation 51: Except in rare circumstances, FTA investigations should probe beyond the self-reporting of the transit agency. Investigations conducted as part of compliance reviews should involve more interaction with the disability community, particularly in large systemwide investigations.

FTA should conduct some site visits and spot checks. These activities should be funded adequately. Examples of when the disability community should be consulted include determination of whether compliance review milestones are reached or whether system-wide corrective actions have been implemented. Investigations should never be closed without follow-up on problems noted by the disability community.

Finding 43: No matter how significant or egregious noncompliance is, FTA has not imposed the kind of rigorous enforcement measures that would ensure that transit agencies correct ADA violations.

Recommendation 52: FTA enforcement should involve more substantial consequences for transit agencies that violate ADA. FTA should develop objective criteria defining degrees or forms of noncompliance by transit agencies that will trigger specific types of sanctions among a range of such sanctions of varying degrees of severity, including significant sanctions for transit agencies with serious, ongoing compliance problems.

Referral to the Department of Justice for litigation and holding up federal funds, or a portion of them, until compliance is achieved are among the consequences FTA can use to secure compliance.

Recommendation 53: When FTA uses consultants to conduct investigations, it should select only individuals or organizations who are viewed as fair and impartial by all parties.

Finding 44: At the time research for this report was conducted, DOT had never referred any findings of discrimination resulting from an ADA complaint to the Department of Justice for litigation.

Recommendation 54: FTA should continue to identify appropriate cases of noncompliance to the Department of Justice and cooperate fully in developing ADA transportation cases for litigation.

Recommendation 55: FTA should issue subregulatory guidance requiring transit agencies to display notices prominently in all vehicles used by transit systems notifying riders, in a format that is culturally competent for their ridership, that discrimination complaints can be made to the transit systems and to FTA.

Notices should include the FTA address and phone number. Transit agencies should also be required to notify all people who complain to them about problems with accessible service that complaints can be made to FTA.

Finding 45: FTA conducted ADA complementary paratransit plan review and approval through the five-year implementation period of ADA paratransit between 1992 and 1997. FTA staff members perceive that their responsibility is to ensure that transit agencies are in compliance with the requirement to submit the written plans, not to monitor actual ADA complementary paratransit service or verify compliance.

Recommendation 56: FTA should require transit agencies to submit ADA plans that include detailed reports on progress toward compliance with ADA's fixed-route requirements, along with ADA complementary paratransit compliance. FTA should monitor agencies' performance of both fixed-route and ADA complementary paratransit compliance by conducting compliance reviews and making use of site visits and spot checks, instead of relying exclusively on self-certification.

Finding 46: FTA has established voluntary compliance agreements (VCAs) for key rail stations in rapid rail, light rail, and commuter rail systems that failed to meet the accessibility requirements by July 1993 and were not eligible for or did not receive time extensions for extraordinarily expensive structural modifications.

FTA has extended the earlier deadlines of the VCAs for 26 rail transit agencies that carry the majority of rail passengers in the United States despite a statutory deadline of 1993 for most of them, because so many were still out of compliance in 1998. Some transit agencies with no or few accessible stations took no action toward providing access and have been rewarded more than once with a VCA or additional time extension, further extending their compliance deadlines.

Recommendation 57: FTA should undertake more rigorous enforcement measures against several transit properties whose VCAs or time extensions have expired.

FTA should refer the cases to the Department of Justice for litigation or should hold up funding (or a portion of funding) until full compliance is achieved.

Recommendation 58: The survey instrument used in key station inspections should be comprehensive and should reflect all characteristics necessary for ADA compliance. Finding 47: FTA has engaged in a considerable amount of technical assistance activity, but little of it is for riders or for people with disabilities.

Recommendation 59: FTA should make publications available for people with disabilities about their rights to transportation services at varying levels of complexity (brief summaries; longer, more technical documents; etc.). FTA should also provide clear notice to transit agencies that they are required to provide and post information for transit users about procedures for filing complaints regarding alleged ADA violations with the transit agencies themselves and with FTA and that such information shall be provided in culturally competent formats appropriate to their riderships.

Recommendation 60: FTA should conduct extensive public education activities in culturally competent formats about accessible transportation for the disability community and other rider constituencies.

Recommendation 61: FTA should index on its Web site the technical assistance letters written in response to transit agency questions, and make them readily available.

Recommendation 62: FTA should offer technical assistance to transit agencies in the area of advanced technologies to improve program efficiencies.

The assistance should support the procurement and development of computer systems with data analysis capabilities to generate more reliable data about service performance and systems' schedule adherence and for automatic scheduling, AVLs, and MDTs.

Finding 48: FTA personnel, generally speaking, identify the agency's constituency as transit agencies.

FTA expends considerable energy to ensure transit agencies' compliance with mandates, including ADA, but it appears to serve the primary goal of ensuring on-paper compliance.

Recommendation 63: DOT should reassign its ADA monitoring and enforcement responsibilities to an administrative unit whose mission and other responsibilities are consistent with vigorous fulfillment of ADA monitoring and enforcement duties and which is as independent as possible from FTA offices that carry out its programmatic transportation responsibilities. Ideally, ADA monitoring and enforcement responsibilities should be assigned to a DOT entity other than FTA.

Preferably, ADA monitoring and enforcement should be relocated outside FTA in the Office of the General Counsel of DOT. If ADA functions must remain within FTA, they should be in FTAOCR, FTA's Office of Chief Counsel, or in a new office dedicated to monitoring and enforcing ADA, rather than in FTATPM or any other office that primarily carries out FTA's programmatic transportation responsibilities.

Recommendation 64: All FTA staff members involved with any aspect of ADA monitoring, implementation, enforcement, or technical assistance (including staff from the Office of Civil Rights, the Office of the Chief Counsel, the Office of Program Management, and any other relevant offices) should receive extensive training regarding the Department of Justice ADA regulation that covers public transit agencies funded by FTA.

Recommendation 65: FTA should use the authority it has to monitor and enforce ADA rigorously, including the following tools that are already available to FTA: stronger interpretation of ADA regulations, compliance reviews, working with DOT to require transit agencies to submit complete ADA plans annually, conducting spot-check investigations of ADA compliance, and consulting more closely with the disability community. In cases of significant noncompliance, FTA should impose meaningful sanctions, including referrals to DOJ for litigation and holding up federal funds or a portion of federal funds.

B. Regarding the United States Coast Guard

Recommendation 66: The Coast Guard should continue firm, active enforcement to achieve remedial action.

Recommendation 67: Staff members of the Coast Guard's Office of Civil Rights should continue its proactive stance in educating the states about ADA compliance issues.

C. Regarding the Federal Aviation Administration

Recommendation 68: The FAA should take whatever steps are necessary to ensure ADA compliance by airports and private concessionaires with regard to the applicability of ADA to private landlord-tenant leases; these steps should include prompt and vigorous enforcement of FAA Order 1400.9.

To the extent that any determinations of nondiscrimination have been based on previous misinterpretations, complaints should be reopened.

Recommendation 69: The FAA should conduct training on ADA and investigative procedures for FAAOCR staff members in area field offices.

Recommendation 70: Rather than conducting complaint investigations exclusively in the area field offices, the FAA headquarters office should take a more proactive role as partner and guide to area field offices in their complaint investigation activities by providing specific support on particular investigations.

The FAA should allocate adequate resources to implement a headquarters/field partnership approach to complaint investigation and resolution.

Recommendation 71: The FAA should work with the Office of the General Counsel at DOT to convene a summit on improving air travel for passengers with disabilities.

Key topics to be addressed at the summit include ADA enforcement in airports and Air Carrier Access Act enforcement for airlines.

D. Regarding the Federal Highway Administration

Recommendation 72: FHWA should shift most of its complaint-investigation activity to the headquarters offices.

FHWA should use its field offices for specific support on particular investigations but should not locate the entire investigation in the field office. FHWA should allocate sufficient resources to accomplish this reassignment of responsibilities.

Recommendation 73: DOT should provide education and training for the field offices to clarify that civil rights enforcement is a primary component of FHWA's overall mandate.

Recommendation 74: The Office of the Secretary of DOT, DOT's Office of the General Counsel, the FHWA administrator, FHWA's Office of Chief Counsel, and the field office administrators should take whatever actions are necessary to ensure that ADA and other civil rights issues are taken more seriously by the field offices.

Recommendation 75: FHWA should require that each complaint file include a Report of Investigation with findings of fact, applicable sections of law, issues, and legal analysis.

No complaint requiring corrective action should be closed without verification that the corrective action is taken, and this verification should be included in the complaint file. These steps should be taken immediately; it is not necessary to wait until formal investigation procedures are finalized. Past complaints that were closed without monitoring of corrective action should be reopened for documented verification of whether the remedial steps were taken.

Recommendation 76: FHWA should engage in rigorous enforcement with respect to curb ramp complaints, an extremely important issue that is central to the daily lives of many people with disabilities.

FHWA should use the adequate legal tools currently available under ADA. FHWA must convey clearly and uncategorically to the field offices that it is FHWA's responsibility to investigate complaints regarding enforcement of accessible parking.

E. Regarding the Federal Railroad Administration

Recommendation 77: FRA should conduct its own investigations rather than relying on Amtrak.

Each complaint file should include a Report of Investigation with findings of fact, applicable sections of law, issues, and legal analysis. No complaint that requires corrective action should be closed without verification that the corrective action is taken, and this verification should be included in the complaint file.

Recommendation 78: FRA should closely monitor the staffing needs for ADA complaint investigation and enforcement function.

Until recently, the FRAOCR staffing level was clearly and egregiously inadequate to handle this important work. FRAOCR should prepare an evaluation report to the FRA administrator in the summer of 2000 assessing the adequacy of staffing and other resources presently available for conducting an effective enforcement program.

Recommendation 79: FRA should provide appropriate staff training to personnel involved in ADA investigative and enforcement functions.

F. Regarding the Department of Transportation as a Whole

Recommendation 80: DOT should continue the trend begun by Secretary Slater in placing a higher priority on ADA and other civil rights enforcement. The modes should be proactive in allocating adequate resources, both in terms of staff and training, to their offices having civil rights enforcement responsibilities.

Recommendation 81: DOT should foster a closer relationship between the Departmental Office of Civil Rights and the offices of civil rights in the operating administrations.

Recommendation 82: DOT should make civil rights a higher priority by making civil rights experience an important qualification for a promotion to an upper-level job.

Recommendation 83: The Office of the Secretary of DOT should institute and institutionalize measures to promote increased priority, understanding, and implementation of transportation rights of passengers with disabilities. Such initiatives should address the entire administrative structure of DOT, to increase the efficacy of ADA enforcement efforts in the Office of the General Counsel, the office of the administrator of each mode, the office of the chief counsel of each mode, the offices of civil rights of each mode, and the field office managers, down to the front-line enforcement personnel in the field offices.

These measures should include increased monitoring of and accountability for performance of ADA enforcement responsibilities throughout the DOT chain of command. In particular, DOT should require that each of the various modes develop objective criteria defining degrees or forms of noncompliance by covered entities that will trigger specific types of sanctions among a range of such sanctions of varying degrees of severity.

Recommendation 84: DOT should inaugurate a dedicated office or other formalized program of providing technical assistance to the public about the availability of its ADA enforcement program.

DOT's Office of the General Counsel recognizes that not enough complaints are being filed to enable the civil rights structures to induce systemic change through the application of enforcement authority. The paucity of complaints is largely the result of a lack of familiarity by potential complainants of their rights and of DOT complaint mechanisms. Outreach should extend to users of all forms of public transportation, including all bus, ADA complementary paratransit, and rail users (including Amtrak); to persons seeking both regular and commercial driver's licenses; to people with disabilities using streets and sidewalks; to airport users with disabilities; and to passengers of commercial vessels and ports.

Recommendation 85: DOT should initiate agencywide training to improve investigation procedures.

Each complaint file should include a Report of Investigation with findings of fact, applicable sections of law, issues, and legal analysis. No complaint requiring corrective action should be closed without verification that the corrective action has been taken, and this verification should be included in the complaint file. These steps should be taken immediately; it is not necessary to wait until formal investigation procedures are finalized. Past complaints that were closed without monitoring of corrective action should be reopened for verification of whether appropriate remedial steps were taken.

Recommendation 86: DOT should initiate additional substantive training on ADA for its staff.

Recommendation 87: DOT should ensure that the planned departmentwide database of complaints will allow an operating administration to quickly determine what ADA complaints have been filed in the past against a particular covered entity or to identify the complaints involving the same type of discrimination issue in a particular state, region, or throughout the country.

Recommendation 88: DOT, under the leadership of the Office of the Secretary, should engage in strategic planning and evaluation involving regular consultation with the disability community as the basis for developing a focused strategy for improving its performance and maximizing its impact in enforcing ADA.

IV. Findings and Recommendations Regarding the Federal Communications Commission (Chapter 5)

Recommendation 89: The FCC should adopt all the policy and practice suggestions of NAD, the Consumer Action Network (CAN), and the Council of Organizational Representatives on National Issues Concerning People Who Are Deaf or Hard of Hearing (COR), grounded as they are in years of information-gathering about and analysis of consumer needs and technological possibilities.

Finding 49: States include information about complaints in conjunction with their state plans, which are submitted to the FCC every five years. There is no central source of information about the effectiveness of the complaint process in the states.

Recommendation 90: Congress should fund a nationwide study of the way the various states are handling the statutory requirement of "functional equivalency."

Recommendation 91: The FCC should establish an advisory committee on disability issues, including telecommunications relay services (TRS) issues, to coordinate with consumers, industry and providers on state policy and practice issues, as well as new technologies.

Finding 50: A minority of the estimated 28 million people who are deaf or hard of hearing know about TRS. Outreach is done at the state level, with no federal coordination. Models do exist for increasing awareness and use of TRS.

Finding 51: The National Association of State Relay Administrators provides states with an opportunity to share information. There is no official forum including consumers, advocates, state relay staff, and providers to serve as a forum for discussion of such issues as best practices, state-level consumer involvement, public outreach, new technologies, or regional cooperation.

Recommendation 92: Congress should fund a TRS technical assistance clearinghouse to provide information to consumers and relay providers.

Recommendation 93: The FCC should amend the minimum standards to significantly increase the public information and outreach efforts required.

The purpose of the outreach should be to increase general public and specific population awareness of TRS (not to promote the products of the TRS provider, as has been reported by advocates about earlier efforts). Costs should be recoverable through the same funding mechanisms as exist for TRS itself. The standards should reflect successful state-level efforts.

V. Findings and Recommendations Regarding the Architectural and Transportation Barriers Compliance Board (Chapter 6)

Finding 52: The Access Board produces an impressive volume of work of high technical quality.

Finding 53: The Access Board is to be commended for its work to harmonize the Americans with Disabilities Act Accessibility Guidelines (ADAAG) changes with the model building code developed by the American National Standards Institute (ANSI). Consistency is important, because states adopt the model building codes.

Finding 54: The Access Board strives to represent all interest groups fairly and forcefully; individuals in and out of government describe the board's work as authoritative and unbiased, and, because of its good reputation, it is designated to develop guidelines and standards in new laws.

Finding 55: The twofold statutory process in which the Access Board develops guidelines and DOT and DOJ adopt them as standards presupposes effective cooperation and collaboration between the Access Board and DOT and DOJ; where such cooperation and collaboration is lacking, the standing, authority, and effectiveness of the Access Board are weakened.

Finding 56: Effective collaboration between DOJ and the Access Board has been inconsistent over time.

Recommendation 94: DOJ and DOT should step up efforts to work with the Access Board to coordinate policy positions before guidelines are issued and technical assistance materials are finalized.

Finding 57: The Access Board is taking a leadership role in developing Web site accessibility standards in conjunction with government and industry leaders.

Recommendation 95: DOJ and the Access Board should coordinate their efforts regarding World Wide Web accessibility.

Finding 58: Some rulemaking takes so long that private board members, whose terms are four years, do not stay on the board long enough to see the completion of their efforts.

Finding 59: The Access Board is required to assume new responsibilities without additional funding, as new laws establish new responsibilities for the development of technical standards and guidelines.

Recommendation 96: When new laws require the Access Board to develop guidelines or standards, Congress should allocate increased funds for the work.

VI. Findings and Recommendations Regarding Technical Assistance Materials and Technical Assistance Agencies (Chapter 8)

Finding 60: Technical assistance materials are not centrally located; rather, they are widely dispersed throughout many agencies and organizations.

Finding 61: A significant proportion of technical assistance titles are available in alternative formats.

Finding 62: A significant number of titles are available in full-text format on the Internet.

Finding 63: Relatively few materials on the subject of ADA and transportation have been created specifically for use by people with disabilities. Likewise, few titles have been produced to help people understand the requirements of Title IV and the relay service.

Finding 64: Some agencies are making a serious effort to provide basic information in languages other than English.

Finding 65: Overall, technical assistance programs provide significant amounts of information and materials to diverse audiences.

Finding 66: Agencies too often do not engage in coordination and legal review of new materials.

Finding 67: The enforcement agencies' efforts to evaluate the effectiveness of their technical assistance programs have been few and inadequate.

Finding 68: Trained and compensated advocacy assistance is needed to bridge the gap for many people with disabilities between problem solving through information dissemination and the alternatives of filing a complaint or litigating.

Finding 69: Those programs that have moved to Web-based technologies are increasing their contact with potential customers and are making it easier for information seekers to find what they need quickly.

Recommendation 97: Congress should fund an ADA and Section 504 technical assistance and information clearinghouse whose purpose is to collect and catalog the widely dispersed ADA and Section 504 resources, and coordinate distribution with the technical assistance agencies.

Recommendation 98: While significant progress has been made making technical assistance materials available in alternative formats, all federally funded materials should be readily available in alternative formats, and the Department of Justice should take appropriate steps to ensure that this occurs.

Recommendation 99: The Department of Justice should initiate a collaborative effort with ADA technical assistance agencies to make all compatible ADA materials available in full-text, audio, or video formats on the Internet.

Recommendation 100: The Department of Justice should convene a task force to determine how to structure, fund, and institute an ADA advocacy initiative that spans the gap for assistance to complainants between where technical assistance leaves off and litigation begins. Congress should provide the funding necessary to implement this initiative.

Recommendation 101: The FCC should significantly increase public information/outreach efforts to increase general public and specific population awareness of the relay service.

Recommendation 102: DOT should significantly increase its commitment to providing ADA transit-related materials and training targeted to people with disabilities in culturally competent formats.

Recommendation 103: Those programs not already doing so should evaluate the effectiveness of their ADA technical assistance to determine whether their work is having the desired outcomes and should redirect resources on the basis of the results.

Recommendation 104: Within the limits of their statutory authority, the technical assistance organizations should collectively develop a coordinated strategic plan for advancing the understanding and implementation of ADA in the future.

Appendix B: Summary of the Americans with Disabilities Act of 1990[1]

Definition of Disability

The Three Prongs of the Definition-42 USC §12102(2)

A person with a disability is defined as:

1. a person with a physical or mental impairment that substantially limits one or more major life activities; or
2. a person with a record of such a physical or mental impairment; or
3. a person who is regarded as having such an impairment.

A physical or mental impairment means:

1. any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or
2. any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

Under the first prong of the definition, for an impairment to be a disability, it must substantially limit some form of major life activity, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, or working.

Whether a person has a disability should be assessed without regard to the availability of mitigating measures. For example, a person who is significantly hard of hearing is substantially limited in the major life activity of hearing, even though the loss may be corrected through the use of a hearing aid. Persons with impairments that substantially limit a major life activity are considered persons with disabilities even if the effects of the impairment are controlled by medication.

The second prong of the definition includes someone with a record of a substantially limiting impairment. This includes, for example, individuals with a history of mental illness, heart disease, or cancer, who no longer have the disease but may be discriminated against because of their record of the impairment.

The third prong of the definition includes persons who meet any of the following three conditions:

1. Someone who has a physical or mental impairment that does not substantially limit major life activities but who is treated by an employer or other covered entity as if the impairment does constitute such a limitation.
2. Someone who has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment.
3. Someone who has no impairment but is treated by an employer or other covered entity as if they have a substantially limiting impairment.

0.1    Individuals Who Illegally Use Drugs--42 USC §§12210, 12212

ADA excludes a person who is currently illegally using drugs from the definition of disability, if the illegal use of drugs is the reason for the discrimination. Drug use is not considered illegal if the drug is taken under the supervision of a licensed health care professional.

ADA does protect individuals who have overcome addiction to illegal drugs. This includes an individual who:

• has successfully completed a supervised drug rehabilitation program and is no longer illegally using drugs, or has otherwise been rehabilitated successfully and is no longer illegally using drugs;
• is participating in a supervised drug rehabilitation program and is no longer illegally using drugs; or
• is erroneously regarded as being an illegal drug user but is not illegally using drugs.

3.1    Other Conditions Exempted from the Definition--42 USC §12211

ADA specifies certain conditions which are exempted from the definition of disability. Homosexuality and bisexuality are not considered disabilities, and therefore are not included in the definition of disability under ADA. Also, the definition specifically excludes a number of conditions even though some of them might otherwise be considered disabilities. They are transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs.

4.    Employment (Title I)

4.1    Effective Dates and Which Employers Are Covered--42 USC §12111 & 29 CFR §1630.2

ADA covers all private employers (whether private for-profit or private nonprofit) who have 15 or more employees. ADA's employment provisions became effective on July 26, 1992, for employers with 25 or more employees. On July 26, 1994, the provisions apply to all employers with 15 or more employees. The term "employer" in ADA does not include either of the following:

• The United States or an Indian tribe.
• A bona fide private membership club (other than a labor organization) that is exempt from taxation under the Internal Revenue Code.

6.1    Qualified Individual with a Disability and Essential Functions--42 USC §§12111, 12112 & 29 CFR §§1630.2(m), 1630.2(n), 1630.4

ADA prohibits discrimination against any qualified individual with a disability, because of such individual's disability, in regard to job application procedures, the hiring and discharge of employees, employee compensation, advancement, job training, and any other terms, conditions, or privileges of employment. The term "qualified individual with a disability" means an individual with a disability who satisfies the requisite skill, experience, education, and other job-related requirements of the employment position such individual holds or desires, and who, with or without reasonable accommodation, can perform the essential functions of such position.

"Essential functions" means job tasks that are fundamental and not marginal. Since a qualified individual with a disability is one who can perform the essential functions of a job (with or without reasonable accommodation), employers may deny jobs to applicants with disabilities who cannot perform essential functions (even with a reasonable accommodation), but may not deny jobs to applicants with disabilities simply because they cannot perform marginal functions, if the inability to perform marginal functions is due to the disability.

6.2    Reasonable Accommodation and Undue Hardship--42 USC §12111(10) & 29 CFR §§1630.2(o), 1630.2(p), 1630.9

Employers must make reasonable accommodations to the known physical or mental limitations of a qualified applicant or employee with a disability, unless the employer can demonstrate that the accommodation would be an undue hardship.

The term "reasonable accommodation" means:

• modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or
• modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or
• modifications or adjustments that enable an employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by other similarly situated employees without disabilities.

Undue hardship means an action requiring significant difficulty or expense; one that is unduly costly, extensive, substantial, disruptive, or that will fundamentally alter the nature of the employment. In determining whether a particular accommodation would be an undue hardship, factors to be considered include:

• the nature and net cost of the accommodation needed, taking into account the availability of tax credits and deductions, and/or outside funding;
• the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources;
• the overall financial resources of the employer; the overall size of the business with respect to the number of its employees; the number, type, and location of its facilities;
• the type of operations of the employer, including the composition, structure, and functions of the workforce; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the employer; and
• the impact of the accommodation on the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business.

14.1    Qualification Standards--42 USC 12112(b)(6) & 29 CFR §§1630.10B.11

Employers may not use qualification standards that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities on the basis of disability unless the requirements can be shown by the employer to be job-related and consistent with business necessity. Job-related means they measure or evaluate a skill that is actually needed on the job. To be consistent with business necessity, they must relate back to an essential function of the job. For example, an employer can adopt the job requirement that an applicant must be able to lift fifty pounds if that ability is genuinely needed to perform the essential functions of the job. Even if a requirement is job-related and consistent with business necessity, if it screens out a person with a disability because of the disability, the employer must still consider whether a reasonable accommodation would enable the applicant with a disability to satisfy the requirement.

14.1.1    Direct Threat--42 USC §12113(b) & 29 CFR §§1630.3, 1630.15

An employer may require that an individual not pose a direct threat to the health and safety of himself or herself or other persons in the workplace. The term "direct threat" means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.

The determination that an individual with a disability poses a safety risk (whether to self or others) must be made on a case-by-case basis and must be based on the individual's present ability to safely perform the essential functions of the job. The mere possibility of future incapacity cannot be the basis for deciding that the individual poses a threat. Any determination of risk must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining direct threat, factors to be considered include:

• the duration of the risk;
• the nature and severity of the potential harm;
• the likelihood that the potential harm will occur; and
• the imminence of the potential harm.

An employer is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk or a speculative or remote risk. The risk can only be considered a direct threat when it poses a significant risk of substantial harm. The employer must identify the specific behavior on the part of the individual with a disability that would pose the anticipated direct threat. This determination must be based on facts and on the behavior of the particular person with a disability, not merely on generalizations, misperceptions, ignorance, or irrational fears about a disability.

If an individual poses a direct threat as a result of a disability, the employer must determine whether a reasonable accommodation would either eliminate the risk or reduce it to the point where there is not a significant risk of substantial harm. The employer may refuse to hire the applicant or may discharge the employee only if no accommodation exists that would either eliminate or reduce the risk.

18.0.1    Illegal Use of Drugs and Use of Alcohol--42 USC §12114 & 29 CFR §1630.16

Employers may prohibit the illegal use of drugs or the use of alcohol by all employees, may require that employees not be under the influence of illegal drugs or alcohol in the workplace, may require that employees conform their behavior to the Drug Free Workplace Act, and may hold a drug user or alcoholic to the same qualifications, performance standards, and behavioral standards to which all employees are held, even if unsatisfactory performance or behavior is related to the individual's drug use or alcoholism.

18.0.2    Medical Examinations and Other Inquiries--42 USC §12112(c) & 29 CFR §§1630.13, 1630.14

ADA prohibits employers from making any inquiries as to the existence or nature of an applicant's disability prior to an offer of employment. An employer may make preemployment inquiries into the ability of applicants to perform job-related functions.

Applications

Employers may not make inquiries about disability on job application forms, but may ask questions to determine whether an applicant can perform specific job functions. An application may include an inquiry into whether the applicant can perform job tasks with or without reasonable accommodation.

An employer may also ask, on a job application, that individuals with disabilities who will require a reasonable accommodation in order to take an employment test so inform the employer within a reasonable time period prior to the administration of the test. However, these questions must be narrowly tailored and may only request the information actually needed by the employer to provide the reasonable accommodation for the test.

Tests

Employers may not use tests that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities on the basis of disability unless the tests can be shown by the employer to be job-related and consistent with business necessity-that is, unless they measure or evaluate a skill that is actually needed on the job. Even if a test is job-related and consistent with business necessity, if it screens out a person with a disability because of the disability, the employer must still consider whether a reasonable accommodation would permit the needed skill or ability to be measured by other means.

Together with the requirement to provide reasonable accommodation, this provision requires that employment tests be administered to eligible applicants or employees with disabilities that impair sensory, manual, or speaking skills in formats that do not require the use of the impaired skill unless the impaired skill is what is being measured. Where it is not possible to test an individual with a disability in an alternative format, an employer may be required, as a reasonable accommodation, to evaluate the skill or ability being tested through some other means, such as an interview, education, work experience, licenses or certification, or a job demonstration for a trial period.

This provision does not apply to employment tests that are actually intended to measure sensory, manual, or speaking skills.

Interviews

In an interview, employers may not ask questions specifically about an applicant's disability. However, employers may ask an applicant to describe how, with or without reasonable accommodation, the applicant will be able to perform job-related functions. If an employer could reasonably believe an applicant will need reasonable accommodation to perform job functions, because the disability is obvious or because the applicant has disclosed a disability, the employer may ask certain limited questions about accommodations: whether and what type of accommodations would be needed. But these questions about accommodations cannot be asked if the disability is irrelevant to the type of job in question.

Medical Examinations

Medical examinations may be conducted only after a job has been offered to the applicant, and only if medical examinations are given to all employees entering into a particular job classification. The offer of employment may be conditioned on the applicant successfully completing the medical examination. The results of medical examinations must be kept confidential, and information obtained during the examination, including the medical condition and history of the applicant, must be collected and maintained on separate forms and kept in files separate from general personnel information. The results must not be used to discriminate against individuals with disabilities.

This confidential information may be shared only with:

• supervisors and managers, who may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
• first aid and safety personnel, who may be informed, when appropriate, if the disability might require emergency treatment or if any specific procedures are needed in the case of fire or other evacuations;
• government officials investigating compliance with ADA and other federal and state laws prohibiting discrimination on the basis of disability, who must be provided relevant information upon request;
• state workers' compensation offices or "second injury" funds, in accordance with state workers' compensation laws;
• insurance companies where the company requires a medical examination to provide health or life insurance for employees.

A test to determine the illegal use of drugs is not considered a medical examination, and may be given by an employer at any point in the application process, even before a conditional offer of employment has been made.

Postemployment

Once a hire is made, an employer cannot require a medical examination, make an inquiry as to whether the employee has a disability, or inquire as to the nature or severity of the disability, unless the examination or inquiry is job-related and consistent with business necessity. The following are examples of situations in which a medical inquiry can be made:

• where there is evidence of a job performance or safety problem,
• where an examination is required by another federal law,
• where examinations are needed to determine current fitness to perform a particular job.

26.0.1    Other Employment-Related Requirements

Contractual Arrangements--42 USC §12112(b)(2) & 29 CFR §1630.6

It is discrimination under ADA if an employer participates in a contractual or other arrangement or relationship with another organization or individual that has the effect of subjecting a qualified applicant or employee with a disability to discrimination.

Association--42 USC §12112(b)(4) & 29 CFR §1630.8

ADA prohibits discrimination against any individual because of the known disability of another individual with whom the first individual has a relationship or association.

Insurance--42 USC 12201 & 29 CFR §1630.15 & 29 CFR §1630.16

An employee with a disability is entitled to the same access to insurance coverage as is provided to all other employees. Employers may not refuse to hire an applicant because of a feared or actual increase in insurance costs caused by the applicant's or the applicant's dependent's disability.

Employers may not deny health insurance coverage to selected members of their workforce based on diagnosis or disability. It is permissible for an employer to offer insurance policies that limit coverage for certain procedures or treatments. A limitation may be placed on reimbursements for a procedure or the types of drugs or procedures covered, for example, a limit on the number of x-rays or excluding experimental drugs from coverage, but that limitation must apply to the particular treatment or procedure, and coverage cannot be denied entirely to a person with a disability on the basis of disability alone.

ADA does not invalidate preexisting condition clauses included in insurance policies, so long as such clauses are not used as a subterfuge to evade the purposes of ADA.

ADA does not disrupt the current nature of insurance underwriting or the regulatory structure for self-insured employers or of the insurance industry. However, this cannot be used as a subterfuge to evade the protections of ADA. Moreover, an insurance plan may not refuse to insure, or refuse to continue to insure, or limit the coverage available, or charge a different rate to an individual with a disability solely because of the disability, except where the refusal, limitation, or rate differential is based on sound actuarial principles or is related to actual or reasonably anticipated experience.

26.1    Enforcement--42 USC §12117

Filing Administrative Complaints with the EEOC

Persons alleging they have been discriminated against should file a complaint with the Equal Employment Opportunity Commission (EEOC). A complaint filed with the EEOC must be filed within 180 days of the incident of discrimination and may be filed in person, by phone, or by mail. A complaint is also called a charge of discrimination, and an individual, group, or organization that files a charge of discrimination is known as a "charging party." If there is a state or local agency fair employment practices agency that enforces a law prohibiting the same alleged discriminatory practice, it is possible that charges may be filed with the EEOC up to 300 days after the alleged discriminatory incident.

It is unlawful for an employer to retaliate against someone who files a complaint of discrimination, participates in an investigation, or opposes discriminatory practices. Even if an individual has already filed a complaint of discrimination, he or she can file a new charge based on retaliation.

The EEOC will investigate the complaint. If the EEOC believes that discrimination has occurred, it will attempt to resolve the complaint through conciliation and obtain full relief for the charging party. If conciliation fails, the EEOC will file suit or issue a "right-to-sue" letter to the charging party. The EEOC also issues right-to-sue letters when the EEOC does not believe discrimination occurred. The charging party is not required to wait for the EEOC to finish processing the complaint. She or he may request a right-to-sue letter from the EEOC 180 days after the complaint was filed.

Lawsuits

A person alleging discrimination has 90 days to file suit in federal court after receiving a right-to-sue letter. If a suit is filed, the EEOC will ordinarily dismiss the original complaint.

Remedies that may be awarded by the court for violations of the employment requirements of ADA include hiring, reinstatement in a job, promotion, back pay, front pay, restored benefits, reasonable accommodation, attorney's fees, expert witness fees, and court costs. Organizations representing individuals with disabilities may bring lawsuits on their behalf.

Because of the passage of the Civil Rights Act of 1991, additional remedies are available in cases of intentional employment discrimination under ADA. Jury trials are available, and compensatory and punitive damages may be awarded. Compensatory damages are available for intentional discrimination, and punitive damages are also available if the employer's conduct was wanton, willful, or reckless. There is a cap on the sum of future compensatory damages plus punitive damages, but there is no cap on compensatory damages that have already been paid out-of-pocket. The sum of future compensatory plus punitive damages may total no more than:

• $50,000 for an employer with between 15 and 100 employees;
• $100,000 for an employer with between 101 and 200 employees;
• $200,000 for an employer with between 201 and 500 employees; and
• $300,000 for an employer with more than 500 employees.

Intentional discrimination does not include the failure to provide a reasonable accommodation if an employer made a good faith effort to provide one.

31.    Public Accommodations (Title III)

Title III of ADA describes the prohibitions against discrimination by privately operated public accommodations, commercial facilities, and private entities offering certain examinations and courses. Except where otherwise specified below, these requirements went into effect on January 26, 1992.

31.1    What Entities Are Covered?--42 USC §12181(7) & 28 CFR §104

ADA prohibits discrimination by any public accommodation, which is defined as any private entity that owns, leases (or leases to), or operates a place of public accommodation. A place of public accommodation is a facility, operated by a private entity, whose operations fall within at least one of the following categories:

1. an inn, hotel, motel, or other place of lodging (except for owner-occupied establishments renting fewer than six rooms);
2. a restaurant, bar, or other establishment serving food or drink;
3. a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;
4. an auditorium, convention center, lecture hall, union hall, or other place of public gathering;
5. a bakery, grocery store, clothing store, hardware store, shopping center, or other retail or wholesale sales or rental establishment;
6. a laundromat, dry cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
7. a terminal, depot, or station used for public transportation (other than air travel);
8. a museum, library, gallery, or other place of public display or collection;
9. a park, zoo, amusement park, or other place of recreation;
10. a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
11. a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
12. a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

The provisions of Title III do not apply to private clubs, which are also exempted from coverage under Title II of the Civil Rights Act of 1964. Case law under the Civil Rights Act of 1964 has considerably narrowed the scope of which private clubs are exempted from coverage. A country club with exclusive membership requirements is an example of the kind of private club that is exempt. Clubs that solicit the general public for membership, such as a health club, are generally not exempt.

Religious organizations or entities controlled by religious organizations are also exempt. As in the case of private clubs, this exemption parallels a similar one in the Civil Rights Act of 1964. But in contrast to the private club exemption, this exemption is intended to have a broad application. However, a public accommodation that is not itself a religious organization but which leases spaces from a religious organization is not exempt. The test is whether the facility in question is controlled by the religious organization.

Landlord and Tenant Responsibilities--28 CFR §36.201

Both the landlord who owns a building that includes a place of public accommodation and a tenant who owns or operates the place of public accommodation are considered public accommodations, and both are fully responsible for complying with ADA's requirements. Allocation of the financial responsibility for complying with ADA's requirements may be determined by the lease or other contract between them, but such an allocation is only effective as between the two parties, and both landlord and tenant remain fully liable for compliance with all provisions of ADA. One party may require the other to indemnify it against all losses caused by the other's failure to comply with its obligations under the lease, but again, such matters would be between the parties and would not affect their liability under ADA.

If an entity that is not a public accommodation leases space for a temporary period in a place of public accommodation, the entity becomes a public accommodation for the duration of the lease. For the entity to become a public accommodation through leasing, some form of payment must be exchanged.

12.1    General Requirements--42 USC §12182 & 28 CFR §36.202 (and other sections as cited below)

No Exclusion of People with Disabilities--42 USC §12182(b)(1)(A)

No individual may be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. It is discrimination:

• to subject an individual or class of individuals on the basis of disability, directly or through contractual arrangements, to a denial of the opportunity to participate in or benefit from a place of public accommodation;
• to afford such an opportunity that is not equal to that afforded other individuals; or
• to provide such an opportunity that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with an opportunity that is as effective as that provided to others.

No Discrimination Through Contract--28 CFR §36.202

A public accommodation that enters into a contract with another entity must ensure that the activity operated under contract is in compliance with ADA.

Integrated Settings--42 USC §§12182(b)(1), 12201(d) & 28 CFR §36.203

Goods and services must be provided to an individual with a disability in the most integrated setting appropriate to the needs of the individual, i.e., in a setting that enables individuals with disabilities to interact with nondisabled individuals to the fullest extent possible. Even if a place of public accommodation provides separate programs or activities specifically for people with disabilities, an individual with a disability cannot be denied the opportunity to participate in programs or activities that are not separate or different. Nothing in ADA may be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity, or benefit that the individual chooses not to accept.

Eligibility Criteria Cannot Screen Out People with Disabilities--42 USC §12182(b)(2)(A)(i) & 28 CFR §36.301

It is discrimination to apply eligibility criteria or standards that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities from fully and equally enjoying any goods and services, unless such criteria can be shown to be necessary for the provision of the goods and services. The wishes, tastes, or preferences of other customers may not be used to justify criteria that would exclude or segregate individuals with disabilities.

A place of public accommodation may impose legitimate safety requirements, even if they tend to screen out people with disabilities. However, these requirements must be based on actual risks and on facts about particular individuals, not on speculation, stereotypes, or generalizations about individuals with disabilities or on the basis of presumptions as to what a class of individuals with disabilities can or cannot do. Any safety standard must be applied to all clients or customers of the place of public accommodation, and inquiries about it must be limited to matters necessary to carrying out the specific standard.

Modification in Policies--42 USC §12182(b)(2)(A)(ii) & 28 CFR §36.302

Places of public accommodation must make reasonable modifications in policies, practices, and procedures when such modifications are necessary to afford goods and services to a person with a disability, unless the public accommodation can demonstrate that modifying the policy or practice would fundamentally alter the nature of the goods and services offered.

A public accommodation that does not allow pets must modify that rule for a person with a disability who uses a service animal. A service animal is any guide dog, signal dog, service dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including but not limited to guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items. ADA's intent is to provide broad access to service animals in all places of public accommodation, including movie theaters, restaurants, hotels, retail stores, hospitals, and nursing homes. In general, the public accommodation may not require the person with a disability to be separated from the service animal. However, Department of Justice regulations state that in rare circumstances, accommodation of service animals may not be required because a fundamental alteration would result in the nature of the goods or services offered, or the safe operation of the public accommodation would be jeopardized.

Association--42 USC §12182(b)(1)(E) & 28 CFR §36.205

It is discrimination to exclude or deny equal goods and services to an individual or entity because of the known disability of another individual with whom the individual or entity has a relationship or association. The term "entity" is included because, at times, organizations that provide services to, or are otherwise associated with, persons with disabilities are subjected to discrimination. The relationship or association need not be a family relationship; any kind of relationship will suffice.

Surcharges--28 CFR §36.301

A public accommodation may not impose a surcharge on an individual with a disability or a group of individuals with disabilities to cover the cost of measures taken to comply with ADA, such as modification of policies, provision of auxiliary aids and services, barrier removal, or alternative methods to barrier removal.

Insurance--42 USC 12201(c) & 28 CFR §36.212

ADA makes it illegal for a public accommodation to refuse to serve persons with disabilities or to serve them differently due to their disabilities because its insurance company conditions coverage or rates on the absence of individuals with disabilities.

Personal Devices and Services--28 CFR §36.306

A public accommodation is not required to provide its customers, clients, or participants with personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; or services of a personal nature, including eating, toileting, and dressing.

15.1    Auxiliary Aids and Services--42 USC §12182(b)(2)(A)(iii) & 28 CFR §36.303

It is discrimination to fail to provide an individual with a disability with an auxiliary aid or service, if one is necessary to avoid excluding or segregating the person or denying him or her goods or services. Auxiliary aids and services mean measures to ensure communication accessibility for persons with impaired vision, speech, or hearing. However, a public accommodation need not provide an auxiliary aid or service if doing so would fundamentally alter the nature of the service being provided or would be an undue burden.

Auxiliary aids and services include such provisions as:

• effective methods of making visually delivered materials available to individuals with visual impairments, including but not limited to qualified readers, taped texts, audio recordings, brailled materials, or large print materials;
• effective methods of making aurally delivered materials available to individuals with hearing impairments, including but not limited to qualified interpreters, note takers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed-caption decoders, open and closed captioning, telecommunication devices for deaf persons (TDDs), or videotext displays;
• effective methods of assisting persons with speech impairments, including TDDs, computer terminals, speech synthesizers, and communication boards;
• acquisition or modification of equipment or devices; and
• other similar services and actions.

What Constitutes an Undue Burden or Fundamental Alteration?

Undue burden means significant difficulty or expense. Determination of what will constitute an undue burden must be made on a case-by-case basis. In determining whether an action would result in an undue burden, factors to be considered include:

• the nature and cost of the action needed;
• the overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;
• the geographic separateness, and the administrative or fiscal relationship of the site(s) in question, to any parent corporation or entity;
• if applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; or the number, type, and location of its facilities; and
• if applicable, the type of operation(s) of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

A fundamental alteration is a modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered.

If providing a particular auxiliary aid or service would be a fundamental alteration or an undue burden, the public accommodation must provide an alternative auxiliary aid or service that would not be such a burden, if one exists, which would ensure, to the maximum extent possible, that individuals with disabilities receive the goods and services offered by the public accommodation.

Other Auxiliary Aid and Service Requirements

The auxiliary aid requirement is a flexible one. In many cases, a variety of auxiliary aids could be used to facilitate communication. Any can be selected as long as the result is effective communication. The public accommodation is strongly encouraged to consult with the individual with a disability to ensure the choice of an auxiliary aid or service that will result in effective communication.

The Department of Justice regulations envision a wide range of communications involving such areas as health, legal matters, and finances, which would be sufficiently lengthy and complex to require a sign language interpreter for effective communication. In situations requiring an interpreter, the public accommodation must secure the services of a qualified interpreter, unless an undue burden would result. A qualified interpreter is defined as an interpreter who is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary.

Public accommodations that offer customers, clients, participants, or patients the opportunity to make telephone calls on more than an incidental convenience basis must make available a TDD. For example, hospitals and hotels are two kinds of public accommodations whose clients and customers have the use of a telephone as an important part of the services provided. Such facilities must make TDDs available. Hospitals and hotels should also provide a TDD at their front desk in order to take calls from patients or guests who use TDDs in their rooms to make inquiries, order room service, etc.

Hotels and other places of lodging that provide televisions in five or more guest rooms, and hospitals that provide televisions for patient use, must provide, upon request, a means for decoding captions for use by an individual with a hearing impairment.

25.1    Courses and Examinations for Licensing and Certifications-42 USC §12189 & 28 CFR §36.309

Any private entity offering examinations or courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, or professional or trade purposes, must offer such examinations or courses in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals.

Examinations

Required modifications to an examination may include changes in the length of time permitted for completion and adaptation in the manner in which an examination is given. The private entity offering the examination must provide appropriate auxiliary aids for persons with impaired sensory, manual, or speaking skills, unless that private entity can demonstrate that providing the auxiliary aid or service would fundamentally alter the measurement of the skills or knowledge the examination is intended to test or would result in an undue burden. Examinations must be offered in facilities that are architecturally accessible, or alternative accessible arrangements must be made. Examinations for individuals with impairments must be offered at equally convenient locations, as often, and in as timely a manner as are other examinations.

Courses

Any private entity offering courses must make such modifications to the courses as are necessary to ensure that the place and manner in which the courses are given are accessible to individuals with disabilities. Required modifications may include changes in the length of time permitted for completion or adaptation of the manner in which the course is conducted or course materials are distributed. The private entity must provide appropriate auxiliary aids and services for persons with impaired sensory, manual, or speaking skills, unless the private entity can demonstrate that offering a particular auxiliary aid or service would fundamentally alter the course or would result in an undue burden. Courses must be given in facilities that are architecturally accessible to individuals with disabilities, or alternative accessible arrangements must be made. Alternative accessible arrangements may include, for example, giving a course in a different location or providing the course through videotape, cassettes, or prepared notes. Alternative arrangements must provide comparable conditions to those provided for nondisabled individuals.

25.2    Structural Access

Existing Facilities--42 USC §12182(b)(2)(A) (iv), (v) & 28 CFR §36.304

Discrimination includes a failure to remove architectural, communication, and transportation barriers in existing facilities and vehicles where such removal is readily achievable. The term readily achievable is defined as "easily accomplishable and able to be carried out without much difficulty or expense." The readily achievable standard is a flexible one, in the sense that what is required will depend greatly on many factors, particularly the resources of the public accommodation. For example, much more would generally be required of a large convention center than a small neighborhood food store.

In determining whether an action is readily achievable, factors to be considered include:

• the nature and cost of the action needed;
• the overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or other impact of the action upon the operation of the site;
• the geographic separateness and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
• if applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
• if applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of its workforce.

A public accommodation generally would not be required to remove a barrier to physical access posed by a flight of steps, if removal would require extensive ramping or an elevator. Ramping a single step, however, will likely be readily achievable, and ramping several steps will in many circumstances also be readily achievable.

Where an entity can show that the removal of a barrier is not readily achievable, it must make goods and services available through alternative methods, if such methods are readily achievable.

New Construction--42 USC §12183 & 28 CFR §401

ADA's new construction provisions, as well as the provisions covering alterations, affect an even broader scope of facilities than public accommodations. All commercial facilities are covered. Commercial facilities include all potential places of employment. This means, in addition to the twelve categories of places of public accommodation, facilities like warehouses, factories, and private offices, which often are not public accommodations.

It is discrimination to fail to design and construct commercial facilities and places of public accommodation for first occupancy later than January 26, 1993, that are readily accessible to and usable by people with disabilities. Architects, contractors, developers, tenants, owners, and other entities may all be responsible for any failure to design and construct buildings in compliance with ADA. To be readily accessible to and usable by people with disabilities, the facility must comply with DOJ regulations and the ADA Accessibility Guidelines (ADAAG).

There is an exception for buildings that are fewer than three stories in height or have fewer than 3,000 square feet per story. In these buildings, elevators are not required. A "story" is that portion of a building included between the upper surface of a floor and the upper surface of the floor or roof next above, if it includes occupiable space. Occupiable space means space designed for human occupancy and equipped with one or more means of egress, light, and ventilation. Basements designed or intended for occupancy are considered stories. Mezzanines are not counted as stories, but are just levels within stories.

The elevator exception, however, is not available--that is, the building must have an elevator--if the building has one or more of the following:

1. a shopping center or mall,
2. the professional office of a health care provider, or
3. a transit terminal, depot, or station (including an airport passenger terminal).

Facilities That Are Altered--42 USC §12183 & 28 CFR §§36.402 B 405

Altered Areas Must Be Accessible

If a commercial facility or place of public accommodation is altered after January 26, 1992, in a manner that affects or could affect usability, it is discrimination to fail to make the alteration in such a manner that, to the maximum extent feasible, the altered portion of the facility is readily accessible to and usable by individuals with disabilities. For an altered area to be considered accessible, it must comply with the alterations provisions of the DOJ regulations and the ADA Accessibility Guidelines.

The phrase "to the maximum extent feasible" allows for the occasional case where the nature of an existing facility is such as to make it virtually impossible to renovate in an accessible manner. However, the alteration must still provide the maximum amount of accessibility that is not "technically infeasible." "Technically infeasible," as defined in the ADAAG, means that an alteration has little likelihood of being accomplished because existing structural conditions require removing or altering a load-bearing member that is an essential part of the structural frame; or because other existing physical or site constraints prohibit modification or addition of elements, spaces, or features that are in full and strict compliance with the minimum requirements and that are necessary to provide accessibility.

Requiring access only when alterations "affect usability" means that minor changes such as painting or papering walls, replacing ceiling tiles, or similar alterations that do not affect usability or access do not trigger the requirement that the altered area be made accessible. Changes to floors may or may not affect usability, depending on the nature of the change involved. Routine maintenance or sanding would not affect usability or accessibility, but laying new carpets in a manner that creates a spongy or uneven surface would affect accessibility for people with mobility or vision impairments. Other changes, such as totally replacing a floor or installing a brick or stone floor, may be so substantial an undertaking and so connected to usability and accessibility as to trigger the accessibility requirements. Usability is intended to be defined broadly to include renovations that affect the use of a facility and not simply changes that relate directly to access.

Path of Travel to Altered Area Also Required

When alterations are made in primary function areas of buildings, an accessible path of travel from outside the building to the altered area must be provided if doing so is not disproportionate in cost and scope to the overall alteration. A primary function area is an area where a major activity for which the facility was intended takes place. The term "path of travel" also includes the restrooms, telephones, and drinking fountains serving the altered area.

The disproportionality concept recognizes that, in some circumstances, achieving an accessible path of travel (including the restrooms, telephones, and drinking fountains serving the altered area) may be so costly in comparison to the alteration being undertaken as to make this requirement unreasonable. Under ADA, the cost of providing an accessible path of travel to the altered area is considered to be disproportionate to the overall alteration when the path of travel cost exceeds 20 percent of the cost of the alteration to the primary function area.

If providing the accessible path of travel will cost more than 20 percent of the cost of altering the primary function area, the public accommodation or commercial facility is only obliged to provide what would not be disproportionate; that is, they are only required to spend 20 percent of the cost of altering the primary function area. In such a case, the public accommodation or commercial facility must choose which accessible features to provide. Priority should be given to those elements that will provide the greatest access, in the following order:

1. an accessible entrance;
2. an accessible route to the altered area;
3. at least one accessible restroom for each sex or a single unisex restroom;
4. accessible telephones;
5. accessible drinking fountains; and
6. when possible, additional accessible features such as parking, storage, and alarms.

6.1    Certification of Equivalence of State and Local Access Codes--42 USC §12188(b)(1)(A)(ii) & 28 CFR §§36.601-.608

State and local governments may apply to have their building codes certified as meeting or exceeding the minimum requirements of ADA for accessibility and usability of facilities.

6.2    Enforcement-42 USC §12188 & 28 CFR §§36.501-.505

Lawsuits

Any person who believes she or he has been discriminated against on the basis of disability has a private right of action and the right to seek injunctive relief from a judge. Injunctive relief can include a court order to alter facilities to make them readily accessible to and usable by individuals with disabilities. Injunctive relief can also include requiring provision of an auxiliary aid or service, modification of a policy, removal of readily achievable barriers, or the provision of service by alternative methods. Attorneys' fees are also available. ADA does not allow a private individual bringing a lawsuit to receive general, compensatory damages, including damages for pain and suffering, or punitive damages.

Filing Complaints

Persons wishing to do so may file complaints with the Department of Justice, which will process administrative complaints and pursue selected cases, including the undertaking of periodic reviews of compliance of public accommodations and commercial facilities. The Department of Justice may bring an action in cases of a pattern or practice of discrimination or in suits of general public importance. In such cases, a judge can award the same type of injunctive relief available in private suits. The judge can also impose a civil penalty of not more than $50,000 for the first violation and not more than $100,000 for a subsequent violation, if the judge determines such penalties are necessary to vindicate the public interest. In addition, if the Department of Justice requests it, the judge can award general compensatory damages (including damages for pain and suffering) but not punitive damages.

7.    State and Local Government (Title II)

Title II of ADA prohibits discrimination against persons with disabilities in all services, programs, and activities provided or made available by state or local governments. Unless otherwise specified, these requirements went into effect on January 26, 1992. Title II is divided into two subtitles. Subtitle A of Title II, which is explained here, covers the activities of state and local governments other than public transit. Subtitle B of Title II, which is discussed under Transportation, deals with the provision of publicly funded transit.

7.1    What Entities and Activities Are Covered?--42 USC §§12102(3), 12131(1) & 28 CFR §§35.102, 35.104, 35.134, 35.140

Title II of ADA covers public entities. The term "public entity" means any department, agency, special purpose district, or other instrumentality of a state or local government, as well as Amtrak and certain commuter rail agencies.

ADA covers every type of state or local government activity or program, including employment. State and local governments cannot discriminate against job applicants and employees with disabilities. Unlike private employers, who are only subject to ADA if they have 15 or more employees, all state and local governments are covered regardless of how many people they employ. State and local governments that are large enough to be covered by Title I of ADA in the same way as private employers (i.e., that have 15 or more employees) must comply with Title I of ADA. State and local governments that are not large enough to be covered by Title I of ADA in the same way as private employers (i.e., that have fewer than 15 employees) must comply with the Department of Justice regulations that implement Section 504 of the Rehabilitation Act (28 CFR part 41) for purposes of Title II. The requirements set forth in the two sets of regulations are, for the most part, identical.

7.2    Qualified Individual with a Disability--42 USC §12131(2) & 28 CFR §35.104

ADA prohibits discrimination by any state or local government against any qualified individual with a disability because of such individual's disability. "A qualified individual with a disability" is defined as an individual who, with or without reasonable modifications to rules, policies, and 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 state or local government.

7.3    General Requirements--42 USC §12132 & 28 CFR §35.130

No Exclusion of People with Disabilities--28 CFR §§35.130(a), 35.130(b)(1)(I)

It is discrimination to refuse to allow a qualified person with a disability to participate in a service, program, or activity simply because the person has a disability.

No Discrimination Through Contract-28 CFR §35.102

If a state or local government enters into a contract or other agreement with a private entity to carry out an aid, benefit, or service of the state or local government, the state or local government must ensure that the activity operated under contract or other agreement is in compliance with Title II of ADA.

Integrated Settings--42 USC §12201(d) & 28 CFR §§35.130(b)(1)(iv), 35.130(b)(2), 35.130(c), 35.130(d), 35.130(e)

Integration is fundamental to ADA, because segregation relegates people with disabilities to second-class status. Therefore, it is a violation of ADA if a state or local government fails to provide programs and services in the most integrated setting appropriate to the needs of the individual, i.e., in a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.

Under ADA, state and local governments can offer programs that are specifically designed for people with disabilities. However, even if state and local governments provide such programs, an individual with a disability cannot be denied the opportunity to participate in programs or activities that are not separate or different.

Nothing in ADA requires an individual to accept an accommodation, aid, service, opportunity, or benefit that the individual chooses not to accept.

Eligibility Criteria Cannot Screen Out People with Disabilities--28 CFR §35.130(b)(8)

It is discrimination for a state or local government to apply eligibility criteria or standards that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities from fully and equally enjoying any goods or services, unless such criteria can be shown to be necessary for the provision of goods and services.

State and local governments may impose legitimate safety requirements, even if they tend to screen out people with disabilities. However, these requirements must be based on actual risks and on facts about particular individuals, not on speculation, stereotypes, or generalizations about individuals with disabilities or on the basis of presumptions about what a class of individuals with disabilities can or cannot do. Any safety standard must be applied to all clients or participants, and inquiries about it must be limited to matters necessary to carrying out the specific standard.

Modification in Policies--28 CFR §35.130(b)(7)

State and local governments must make reasonable modifications in policies, practices and procedures when such modifications are necessary to avoid discrimination on the basis of disability, unless the state or local government can demonstrate that modifying the policy or practice would fundamentally alter the nature of the activities and services offered.

Association--28 CFR §35.130(G)

It is discrimination for a state or local government to exclude or deny equal services, programs, or activities to an individual or entity because of the known disability of another individual with whom the individual or entity has a relationship or association.

Surcharges--28 CFR §35.130(F)

A state or local government may not impose a surcharge on an individual with a disability or a group of individuals with disabilities to cover the cost of measures taken to comply with ADA, such as the provision of auxiliary aids or program access.

Granting of Licenses and Certifications--28 CFR §35.130(b)(6)

A state or local government may not discriminate against a qualified individual with a disability, on the basis of disability, in the granting of licenses and certifications. A state or local government may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may a state or local government establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability.

Personal Devices and Services--28 CFR §35.135

A state or local government is not required to provide individuals with disabilities with personal devices, such as wheelchairs; individually prescribed devices, such as prescription eyeglasses or hearing aids; readers for personal use or study; or services of a personal nature, including eating, toileting, and dressing.

7.4    Program Access in Existing Facilities--28 CFR §§35.149, 35.150

Every qualified individual with a disability is entitled to access to the programs, activities, services, and benefits provided by a state or local government. In existing facilities, a state or local government is required to operate each program so that, when viewed it its entirety, the program is readily accessible to and usable by people with disabilities. If a program can be made accessible by some method other than providing architectural access, providing architectural access is not required. A state or local government does not have to provide program access where the government can show that to do so would result in a fundamental alteration of the program or undue financial or administrative burdens.

In deciding which methods to use to achieve program access, innovation and creativity are encouraged. The following are possible methods that may be used:

• redesign of equipment,
• reassignment to accessible buildings,
• use of aides and home visits,
• delivery of services at alternative accessible sites,
• use of accessible vehicles,
• alteration of existing facilities, and
• construction of new facilities.

Effective access must be provided, and priority is given to methods that ensure integration of people with disabilities into the same programs and activities as nondisabled persons, i.e., that enable individuals with disabilities to interact with nondisabled persons to the fullest extent possible.

A state or local government has the obligation to prove that providing program access would result in fundamental alteration or undue burdens. All resources available for use in the funding and operation of the service, program, or activity must be considered. The decision that fundamental alteration or undue burdens would result must be made by the head of the state or local government or his or her designee, but in any case, by a high-level official, no lower than a department head, having budgetary authority and responsibility for making spending decisions. The decision must be documented in a written statement, including the reasons for reaching the conclusion that fundamental alteration or undue burdens would result.

14.1    Other Structural Access Requirements

New Construction--28 CFR §35.151(a)

Any facility or part of a facility that is newly constructed by a state or local government must be designed and constructed so that it is readily accessible to and usable by people with disabilities. For a facility to be "readily accessible to and usable by people with disabilities," it must comply with the accessibility standards discussed below.

Facilities That Are Altered--28 CFR §35.151(b)

When alterations will affect the usability of a facility, the altered portion of the facility must, to the maximum extent feasible, be readily accessible to and usable by people with disabilities. For a facility to be "readily accessible to and usable by people with disabilities" means it must comply with the accessibility standards discussed below.

Curb Ramps--28 CFR §35.150(d)(2)

If a state or local government has authority over roads and sidewalks, it must provide physical access. One form of providing physical access is to provide curb ramps or other sloped areas at existing pedestrian walkways.

Accessibility Standards--28 CFR §35.151(c)

Two choices for technical standards may be used in new construction and alterations of state and local government buildings:

• the Uniform Federal Accessibility Standards (UFAS), or
• the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (ADAAG).

A state or local government may comply with either standard. It is expected that after some period of time, the Department of Justice will adopt new standards for Title II from the Access Board; after that point, state and local governments will be required to comply with ADAAG.

16.1    Auxiliary Aids and Services--28 CFR §§35.104, 35.160(b), 35.164

State and local governments must furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity, unless it would result in a fundamental alteration of the program or an undue financial or administrative burden. Auxiliary aids and services mean measures to ensure communication accessibility for persons with impaired vision, speech, or hearing.

Auxiliary aids and services include:

• effective methods of making visually delivered materials available to individuals with visual impairments, including but not limited to qualified readers, taped texts, audio recordings, brailled materials, or large print materials;
• effective methods of making aurally delivered materials available to individuals with hearing impairments, including but not limited to qualified interpreters, notetakers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed-caption decoders, open- and closed-captioning, telecommunications devices for deaf persons (TDDs), or videotext displays;
• acquisition or modification of equipment or devices; and
• other similar services and actions.

A state or local government must give persons with disabilities the opportunity to request the auxiliary aids and services of their choice. That choice must be given primary consideration-that is, the government must honor the choice unless it can demonstrate that another effective means of communication exists, or that use of the means chosen by the person with a disability is not required because it would result in a fundamental alteration or an undue burden.

Provision of Qualified Interpreters--28 CFR §35.104

A "qualified interpreter" is an interpreter who is able to interpret effectively, accurately, and impartially both receptively and expressively, using any necessary specialized vocabulary.

Provision of Telecommunication Devices for the Deaf--28 CFR §§35.161-.162

Communication by Telephone--28 CFR §35.161

When a state or local government communicates with the public by telephone, ADA requires that telecommunication devices for the deaf (TDDs) or equally effective telecommunication systems be used to communicate with people who have hearing or speech impairments. "Equally effective communication systems" may include the use of a telecommunications relay service such as that required by Title IV of ADA.

Telephone Emergency Services (9-1-1)--28 CFR §35.162

A state or local government is required to provide "direct access" for callers with hearing or speech impairments who use TDDs or computer modems to any telephone emergency services (often known as "9-1-1" services) available to callers without disabilities, including fire, police, ambulance services, emergency poison control information, etc.

Procedure for Claiming Fundamental Alteration or Undue Burdens--28 CFR §35.164

A state or local government has the obligation to prove that providing an auxiliary aid or service would result in fundamental alteration or undue burden. All resources available for use in the funding and operation of the service, program, or activity must be considered. The decision that fundamental alteration or undue burden would result must be made by the head of the state or local government or his or her designee, but in any case, by a high-level official, no lower than a department head, having budgetary authority and responsibility for making spending decisions. The decision must be documented in a written statement, including the reasons for reaching the conclusion that fundamental alteration or undue burden would result.

20.1    Self-Evaluation and Transition Plan

Self-Evaluation--28 CFR §35.105

All state and local governments must do a self-evaluation of their current services, programs, and activities, and review all their policies and practices, and the effects thereof, that do not or may not meet the requirements of ADA. To the extent that modification of any such services, policies, and practices is required, the state or local government must make the necessary modifications. The self-evaluation was to be completed by January 26, 1993.

Transition Plan--28 CFR §§35.150(c), 35.150(d)

A state or local government must complete a transition plan only if structural changes are needed to achieve program access and if the state or local government has 50 or more employees. A transition plan addresses the structural changes that must be made to state and local government facilities. The transition plan must identify physical obstacles that limit program access, describe in detail the methods that will be used to achieve program access, and set out the schedule for making structural changes that are needed. If the time period for the transition is more than one year, the schedule must identify the changes that will be made during each year. The plan must also identify the state or local government official who is responsible for implementing the plan. The deadline for developing a required transition plan was July 26, 1992. All structural changes that need to be made to provide program access were to be made by January 26, 1995.

20.2    Enforcement

Internal Grievance Procedures--28 CFR §35.107

All state and local governments with 50 or more employees must designate at least one employee to coordinate the government's effort to comply with ADA and must disseminate information about how to locate that employee. The designated employee(s) must investigate any complaints alleging that the state or local government has failed to meet the requirements of ADA. The state or local government must make the name, business address, and business telephone number of the designated employee(s) available to interested persons. Also, a state or local government with 50 or more employees must adopt and publish grievance procedures providing for prompt and equitable resolution of complaints alleging failure to comply with ADA.

Filing Administrative Complaints with the Federal Government--28 CFR §§35.170-.174, 35.190

To enforce Title II, administrative complaints may be filed with the Federal Government alleging that a state or local government has not complied with ADA. Any administrative complaint must be filed within 180 days of an incident of discrimination.

A complaint (other than an employment complaint) may be filed with any of the following:

1. any federal agency that provides funding to the state or local government that is the subject of the complaint, or
2. any of the eight agencies designated by ADA regulations for state and local government enforcement, or
3. the Department of Justice.

An employment complaint may be filed with any of the following:

1. any federal agency that provides funding to the state or local government that is the subject of the complaint, or
2. any of the eight agencies designated by ADA for state and local government enforcement, or
3. the Equal Employment Opportunity Commission.

Designated agencies will investigate each complete complaint, attempt informal resolution, and, if resolution is not achieved, issue to the complainant and to the state or local government against which the complaint has been filed a letter of findings containing findings of fact, conclusions of law, and a description of a remedy for each violation found. If a designated agency's letter of findings finds noncompliance, it will notify the Department of Justice by forwarding a copy of the letter of findings and will initiate negotiations with the state or local government to secure compliance by voluntary means. If the designated agency is able to secure voluntary compliance, a voluntary compliance agreement will be executed in writing and signed by the parties. If a state or local government declines to enter into voluntary compliance negotiations or if negotiations are unsuccessful, the designated agency shall refer the matter to the Department of Justice with a recommendation for appropriate action. The Department of Justice may proceed to file a suit in federal district court.

Lawsuits

Lawsuits may be filed against state and local governments at any time, whether or not one has filed an administrative complaint. The remedies that are available in a lawsuit under Title II of ADA include court orders that a state or local government comply with ADA and attorneys' fees.

Until 1992, federal courts in various parts of the country came to different conclusions as to whether compensatory and punitive damages are available under Section 504. However, this issue may have been resolved by a Supreme Court decision in February 1992 called Franklin vs. Gwinnett County Public Schools, No. 90-918, which states that under a similar law, Title IX of the Education Amendments of 1972, which prohibits sex discrimination, courts may award damages. Therefore, it is very likely that money damage awards will be available under Title II of ADA.

4.    Transportation (Titles II & III)

Public transportation means transportation by bus, rail, or any other conveyance (other than air travel) that provides the general public with general or special service on a regular and continuing basis.

4.1    Transportation Provided by Publicly Funded Entities--42 USC §§12141B12161

Newly Purchased Vehicles--49 CFR §§37.7, 37.9, 37.71

It is discrimination for a public entity to purchase or lease a new fixed-route bus or rail vehicle for which a solicitation was made after August 25, 1990, if the vehicle is not readily accessible to and usable by individuals with disabilities. The "readily accessible to and usable by" standard means that vehicles for which bids were closed on or after October 7, 1991, must comply with technical standards in the DOT regulations.

Used Vehicles and Remanufactured Vehicles--42 USC §12142(b) & 49 CFR §37.73; 42 USC §12142(c) & 49 CFR §37.75

If a public entity purchases or leases a used vehicle after August 25, 1990, the entity must make demonstrated good faith efforts to purchase or lease an accessible vehicle.

A remanufactured vehicle is a vehicle that has been structurally restored and has had new or rebuilt major components installed to extend its service life for at least five years. If a public entity remanufactures a vehicle or purchases a remanufactured vehicle so as to extend its useful life for five years or more, the vehicle must be accessible to the maximum extent feasible. This requirement went into effect starting August 25, 1990. "To the maximum extent feasible" means that access is not required if an engineering analysis indicates that specified accessibility features would have a significant adverse effect on the structural integrity of the vehicle.

Requirements Cannot Be Evaded Through Private Contracts--49 CFR §§37.23, 37.37

The ADA's transportation requirements may not be evaded by public transit agencies that choose to provide service by contracting with private companies rather than providing the service directly. A private entity that purchases or leases vehicles for use or in contemplation of use under contract or other arrangement with a public agency must acquire accessible vehicles in all situations in which the public agency itself would be required to do so. Also, the public agency must ensure that the percentage of accessible vehicles in the overall fleet (including those of the private entity) is not diminished as a result of the contract.

Providing Nondiscriminatory Service--42 USC §§12201-12212 & 49 CFR §§37.5, 37.161-.167, 37.173

Except as specified below, the requirements in this section apply to privately funded transit agencies as well as publicly funded ones.

No transit agency may deny any individual with a disability, on the basis of disability, the opportunity to use the transit agency's service if the individual is capable of using that service. Each transit agency must ensure that personnel are trained to proficiency.

Transit agencies must maintain in operative condition those features of facilities and vehicles necessary to make the facilities and vehicles accessible. These features include lifts, securement devices, elevators, signage, and systems to facilitate communications with persons with impaired vision or hearing. Accessibility features must be repaired promptly. When an accessibility feature is out of order, the transit agency must take reasonable steps to accommodate individuals with disabilities who would otherwise use the feature. Isolated or temporary interruptions in service or access due to maintenance or repairs are not considered discrimination, but a pattern of such interruptions in service or an overly long interruption in service could be considered discrimination.

There are additional maintenance requirements for publicly funded bus transit agencies. These agencies must establish a system of regular and frequent maintenance checks of lifts sufficient to determine if they are operative. The transit agency must ensure that vehicle operators report, by the most immediate means available, any failure of a lift to operate in service. When a lift is discovered to be inoperative, the transit agency must take the vehicle out of service before the beginning of the vehicle's next service day and ensure that the lift is repaired before the vehicle returns to service.

There is an exception to the requirement to remove a vehicle from service to repair it, for situations in which there is no spare vehicle to take the place of the vehicle to be removed, and taking the vehicle out of service would reduce the transportation service available to the general public. In such cases, the transit agency may keep the vehicle in service with an inoperable lift for no more than five days (if the transit agency serves an area of 50,000 or fewer population) or three days (if the transit agency serves an area of over 50,000 population) from the day on which the lift is discovered to be inoperative.

All common wheelchairs and their users must be transported in the transit agency's vehicles or other conveyances. Common wheelchairs are those wheelchairs that can fit on a lift that complies with the specifications in DOT's technical standards (that is, a 30-inch by 48-inch lift) and weighs no more than 600 pounds when occupied.

The transit agency is not required to permit wheelchairs to ride in places other than designated securement locations in the vehicle, where such locations exist. The transit agency may require that a wheelchair user permit his or her wheelchair to be secured and must use securement systems to ensure that the wheelchair remains in the securement area. But even if the securement system cannot accommodate a particular wheelchair, transportation cannot be denied to its user. Further, while systems to secure the wheelchair may be required, the passenger may not be required by the transit agency to use a seat belt unless all other passengers in the vehicle are similarly required to use seat belts. The transit agency may recommend but may not require that a wheelchair user transfer to a vehicle seat.

The transit agency must permit individuals with disabilities who do not use wheelchairs, including standees, to use a vehicle's lift or ramp to enter the vehicle.

The transit agency may not refuse to permit a passenger who uses a lift to board or disembark from a vehicle at any designated stop, unless the lift cannot be deployed at the stop, unless the lift will be damaged if it is deployed, or unless all passengers are precluded from using the stop due to temporary conditions at the stop that are not under the control of the transit agency.

On fixed-route systems, stops must be announced at transfer points with other fixed routes, other major intersections and destination points, and intervals along a route sufficient to permit individuals with visual impairments or other disabilities to be oriented to their location. Also, any requested stop must be announced.

Paratransit Is Required--42 USC §12143 & 49 CFR §37.121 B 155

ADA states that it is discrimination for a public agency that operates a fixed-route bus system, rapid rail system, or light rail system to fail to ensure that paratransit is provided to individuals with disabilities who cannot use the fixed-route system. The paratransit program was to begin to be implemented by January 26, 1992.

If the provision of paratransit would be an undue financial burden on the public transit agency, service is not required beyond the undue burden level, unless ordered by the Department of Transportation.

Paratransit Eligibility: Three Categories--42 USC §12143(c) & 49 CFR §37.123

First Eligibility Category--"Can't Navigate The System." The first category includes any individual with a disability who is unable, as the result of a physical or mental impairment (including a vision impairment) without the assistance of another individual (except the operator of a wheelchair lift or other boarding assistance device) to board, ride, or disembark from any vehicle on the system that is readily accessible to and usable by individuals with disabilities.

Second Eligibility Category--"Needs An Accessible Bus." The second category includes individuals with disabilities who can use buses that have wheelchair lifts or other boarding assistance devices when such persons want to travel on routes that are still inaccessible (not served by accessible buses).

Third Eligibility Category--"Specific Impairment-Related Condition." The third category includes any individual with a disability who has a specific impairment-related condition that prevents the individual from traveling to a boarding location or from a disembarking location.

At Least One Associate May Also Ride--At least one associate may ride with any recipient of paratransit services.

Paratransit Service Criteria--42 USC §§12143(c)(2)-(3) & 49 CFR §37.131

Service Criterion #1: Service Area. The transit agency must provide paratransit to origins and destinations within corridors that extend three-fourths of a mile on each side of each fixed route (that is, corridors that are 1.5 miles wide). At the endpoint of each route, the corridor must include an area with a .75 mile radius. Within the central portion of the urban area where the corridors around each route converge to form a solid mass (also known as the core service area), the transit agency must also provide paratransit service to small areas not inside any of the corridors but that are surrounded by corridors. Service must be provided from any point in any of the corridors to any point in the same corridor or in any other corridor.

Service Criterion #2: Response Time. The transit agency must schedule and provide paratransit service to any ADA paratransit-eligible person at any requested time on a particular day in response to a request for service made the previous day. The transit agency may negotiate pickup times with the individual, but may not require him or her to schedule a trip to begin more than an hour before or after the individual's desired departure time.

Service Criterion #3: Fares. Paratransit fares may not exceed twice the fare that would be paid by an individual paying full fare (not discounted fare) for a trip of similar length, at a similar time of day, on the transit agency's fixed-route service.

Service Criterion #4: No Trip Purpose Restrictions. Paratransit service may not impose restrictions or priorities based on trip purpose.

Service Criterion #5: Hours and Days of Service. Paratransit must be available throughout the same hours and days as the transit agency's fixed-route service.

Service Criterion #6: Capacity Constraints. The transit agency may not limit the availability of paratransit service to ADA paratransit eligible persons in any of the following ways:

1. Restrictions on the number of trips an individual will be provided;
2. Waiting lists for access to the service; or
3. Any operational pattern or practice that significantly limits the availability of service to ADA paratransit-eligible individuals, including but not limited to substantial numbers of significantly untimely pickups, substantial numbers of trip denials or missed trips, or substantial numbers of trips with excessive lengths. Operational problems attributable to causes beyond the control of the transit agency (such as weather or unanticipated traffic conditions) may not be a basis for determining that such a pattern or practice exists.

Communities Operating Demand Responsive Systems for the General Public--42 USC §12144 & 49 CFR §37.77

It is discrimination under ADA for a transit agency to purchase or lease a new vehicle after August 25, 1990, for demand responsive service that is not accessible, unless the transit agency can demonstrate that the system, when viewed in its entirety, provides a level of service to individuals with disabilities equivalent to the level of service provided to the general public.

Rail Transit

ADA covers intercity, commuter, rapid, and light rail systems.

Intercity Rail (Amtrak)--42 USC §12162 & 49 CFR §37.91 & 49 CFR §37.55

ADA requires Amtrak, which operates intercity rail transit in the United States, to have at least one passenger car per train that is readily accessible to and usable by individuals with disabilities as soon as is practicable, but in no event later than July 26, 1995. Also, as soon as is practicable, but in no event later July 26, 1995, Amtrak must include, on each train with one or more single-level rail passenger coaches, a number of spaces to park and secure wheelchairs equal to not less than one-half the number of single-level rail passenger coaches on the train. The purpose of these spaces is to accommodate individuals who wish to remain in their wheelchairs while traveling on Amtrak. In addition, Amtrak must also include on each of these trains a number of spaces to fold and store wheelchairs equal to not less than one-half the number of single-level passenger coaches on the train. The purpose of these spaces is to accommodate persons who wish to transfer to coach seats from their wheelchairs. Further, by July 26, 2000, Amtrak must provide twice that number.

Existing intercity rail (Amtrak) stations must be made accessible as soon as practicable but in no event later than July 26, 2010. It is discrimination to build a new station for intercity rail use that is not readily accessible to and usable by individuals with disabilities.

Commuter, Rapid, and Light Rail-Existing and New Cars--42 USC §12162(b) & 42 USC §§12142(a), 12162(b)(2)(A) & 49 CFR §37.93 & 49 CFR §§37.79, 37.85

At least one car per train on light and rapid rail trains of at least two cars in length were to be accessible to individuals with disabilities by July 26, 1995. One-car trains are exempted. For commuter rail, one car per train was required to be accessible by July 26, 1995, regardless of the train's length.

It is discrimination under ADA to purchase or lease new passenger rail cars for use in commuter, rapid, and light rail transportation, for which solicitation was made after August 25, 1990, unless the cars are readily accessible to and usable by individuals with disabilities.

Rapid, Commuter, and Light Rail-Stations--42 USC §§12147(b), 12162(e)(2)(A), 12162(e)(1)-(e)(2)(B), 12146, 12147 & 49 CFR §§37.47, 37.53, 37.59

Key stations in rapid rail, commuter rail, and light rail systems were to be made accessible as soon as practicable but in no event later than July 26, 1993. The time limit for rapid and light rail may be extended by the Department of Transportation up to 30 years for extraordinarily expensive structural changes to, or replacement of, existing facilities necessary to achieve accessibility. If 30 years are given, a rail system must complete two-thirds of the stations within 20 years. For commuter rail, the time limit for extraordinarily expensive structural changes may be extended by the Department of Transportation for up to 20 rather than 30 years. Extraordinarily expensive structural changes means installations of elevators, raising the entire passenger platform, or alterations within a station of similar magnitude and cost.

The process of designating key stations must have significant involvement by the disability community. The public transit agency must develop a plan for compliance that involves consultation with affected individuals with disabilities and establishes milestones for achievement of the required level of access. A public hearing should be held during the deliberation process.

It is discrimination to build a new station for commuter, rapid, or light rail use that is not readily accessible to and usable by individuals with disabilities.

Paratransit Is Required for Rapid and Light Rail Systems

ADA places paratransit requirements on agencies that operate rapid and light rail systems. In general, the requirements for rail paratransit are the same as for bus paratransit and are detailed above. The rest of this section contains the requirements for rail paratransit that are different from the bus requirements.

The service area for rail transit will consist of a circle with a diameter of 1.5 miles around each station (whether or not it is a key station). The transit agency is required to provide trips from any point in one circle to any point in any other circle. The transit agency is not required to provide paratransit service between two points within the same circle, since a trip between two points in the vicinity of the same station is not a trip that typically would be taken by train.

Eligibility for rail paratransit is the same as for bus paratransit, except for the second eligibility category. For this category, an individual is eligible if the individual could use an accessible rail system but there is not yet one accessible car per train on the system, or key stations have not yet been made accessible. For persons in this category, the public transit agency's obligation is only to provide transportation between circles centered on key stations, since, even when the key station plan is fully implemented, these individuals will be unable to use nonkey stations.

3.1    Transportation Provided by Private Entities--42 USC §§12182-12188

Requirements for Private Entities Primarily in the Business of Transportation--42 USC §12184 & 49 CFR §§37.29, 37.103, 37.105, 37.107

Private entities primarily engaged in the business of transporting people are prohibited from purchasing or leasing a new vehicle (other than an automobile, a van with a seating capacity of fewer than eight passengers including the driver, or an over-the-road bus) to be used in a fixed-route system that is not readily accessible to and usable by people with disabilities, if the solicitation for the vehicle was made after August 25, 1990. When these providers purchase or lease a new vehicle that is to be used in a demand response system, the new vehicle need not be accessible if the transit provider can show that the system, when viewed in its entirety, provides a level of service to individuals with disabilities equivalent to the level of service provided to the general public.

Private entities providing taxi and limousine service may not discriminate on the basis of disability in providing that service.

Intercity Bus Service and Over-the-Road Buses--42 USC §§12185-12186 & 49 CFR §§37.169, 37.181-215

According to regulations published September 28, 1998, beginning October 2000, for service provided by large companies (or 2001 for service provided by small companies), all new buses purchased or leased by fixed-route over-the-road bus (OTRB) companies must be accessible. Half the fleets of large OTRB operators must be accessible by October 2006; the entire fleets of these companies must be accessible by October 2012. However, if the company has not obtained enough buses in the 6 or 12 years to meet the 50 percent or 100 percent requirements, has not loaded up on inaccessible buses during the two-year phase-in period between 1998 and 2000, and has otherwise complied with ADA, the secretary of DOT can grant a time extension beyond the 6- and 12-year dates. Beginning October 2001/2002 (for large/small operators, respectively), fixed-route OTRB companies must provide service in an accessible bus to a passenger who requests it with 48 hours' advance notice. This interim service must continue until the OTRB companies' fleets are 100 percent accessible. Beginning October 2001/2002, charter and tour companies (and any other private demand/response transit service providers) must provide service in an accessible bus to a passenger who requests it with 48 hours' advance notice.

There are two special situations affecting fixed-route service by small companies. A small company may provide equivalent service instead of acquiring accessible buses. This service must permit passengers to travel in their own wheelchairs and must provide people with disabilities service that is equivalent to that provided to nondisabled passengers, in terms of time, destination, cost, service availability, etc. This could be provided by an alternate vehicle (e.g., a van). Also, a small company that operates mostly demand-responsive service but has a small amount of fixed-route service (up to 25%) can meet all its requirements through 48-hour advance reservations.

At rest stops, OTRB companies must provide passengers with the time and assistance needed to leave and reenter the bus to use the facilities, whether or not the bus is accessible. If the bus company owns, leases, controls, or contracts with a rest stop facility, it must make sure the facility meets ADA's accessibility requirements.

Until the above requirements become effective, private companies using OTRBs are subject to general nondiscrimination requirements. They must help a passenger with a disability onto the bus if the passenger cannot board the bus independently. The provider may require up to 48 hours advance notice from individuals with disabilities for providing boarding assistance. However, if the individual does not provide advance notice for boarding assistance, the provider must provide the boarding assistance anyway, if it can do so by making a reasonable effort without delaying bus service. Mobility equipment must be stowed in the passenger compartment, if possible; or if not, in the baggage compartment.

Requirements for Private Entities Not Primarily in the Business of Transportation--42 USC §§12182(b)(2)(B), (C), (D) & 49 CFR §§37.101, 37.171

Transit providers covered by this section may not purchase or lease any vehicle, new or used, that carries in excess of 16 passengers (including the driver) for fixed-route service for which a solicitation was made after August 25, 1990, that is not readily accessible to and usable by individuals with disabilities. If such providers purchase or lease a vehicle (new or used) carrying 16 or fewer passengers (including the driver) for use in fixed-route service, the service must be operated such that it offers people with disabilities a level of service equivalent to that provided to the general public when the system is viewed in its entirety. Automobiles and vans seating fewer than eight persons are exempt from this requirement.

Each private entity not primarily in the transportation business that provides demand-response transportation must provide a level of service to persons with disabilities equivalent to the level it provides to the general public when the transit system is viewed in its entirety.

4.    Telecommunications (Title IV)

Title IV of the Americans with Disabilities Act requires telecommunications relay services and closed-captioning of all federally funded TV public service announcements.

4.1    Telecommunications Relay Services--47 USC §225 & 47 CFR Parts 0 & 64

ADA required, by July 26, 1993, all common carriers (telephone companies) to provide intrastate and interstate telecommunications relay services.

ADA requires telecommunications relay services to be functionally equivalent to standard telephone service. This includes being available 24 hours a day, seven days a week, without restrictions on the type, length, or number of calls made by any relay user. Telecommunications relay service users must have access to their chosen long distance carrier, and to all other operator services to the same extent that such access is provided to ordinary voice telephone users.

ADA amends the Communications Act of 1934 and uses the administrative remedies procedure established under that act. Thus, in most situations, the Federal Communications Commission (FCC) will handle complaints. Complaints must be filed in writing and addressed to the FCC. Once a complaint is filed, the FCC must resolve it within 180 days. In addition, there is a private right of action to obtain review of FCC decisions in federal court. Attorneys' fees are available.

5.    Miscellaneous Provisions (Title V)

5.1    The Relationship Between ADA and Other Laws--42 USC §12201(a) & 29 CFR §§1630.1(b)-.1(c), 1630.16(e)(2) & 28 CFR §35.103 & 28 CFR §36.103

ADA does not reduce the scope of coverage or apply a lesser standard than the coverage of Title V of the Rehabilitation Act of 1973. Also, nothing in ADA invalidates or limits any other federal law or the law of any state or local government that provides greater or equal protection than is afforded by ADA. ADA does take precedence over other laws that provide less protection. However, there may be an exception in the area of other federal laws that provide less protection than ADA.

5.2    The Relationship Between ADA and Insurance--42 USC §12201(c) & 29 CFR §1630.16(f) & 28 CFR §36.212 & 49 CFR §37.5(g)

See above sections: Employment, Public Accommodations, State and Local Government.

5.3    States Can Be Sued--42 USC §12202 & 28 CFR §35.178

States are not immune from suit under ADA. Remedies are available to the same extent as against public and private entities.

5.4    Protection Against Retaliation--42 USC §12203 & 29 CFR §1630.12 & 28 CFR §35.134 & 28 CFR §36.206

No individual or organization may discriminate against another individual who has opposed any act or practice made unlawful by ADA or because such other individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under ADA. Moreover, it is unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other person in the exercise or enjoyment of any right granted or protected by ADA.

5.5    Technical Assistance--42 USC §12206 & 28 CFR §35.177 & 28 CFR §507

ADA includes a requirement that federal agencies responsible for enforcing it must provide technical assistance to covered entities as well as individuals with rights under ADA. The attorney general, in consultation with other chief government executives whose departments are affected by ADA, was required to develop the technical assistance plan by January 26, 1991, and publish it for comment. Each federal department or agency with responsibility for implementing ADA may render technical assistance to individuals and groups with rights and responsibilities under ADA. Also, each is to publish a technical assistance manual. As well, each department or agency may make grants and enter into contracts for technical assistance purposes with organizations that can provide information to covered entities and to individuals with disabilities. However, no covered entity is excused from compliance with ADA because of any lack of exposure to technical assistance or any failure of the authorized technical assistance manuals.

5.6    Coverage of U.S. Congress--42 USC §12209

ADA covers the Congress of the United States, including the Senate, the House of Representatives, and the instrumentalities of Congress. ADA details applicable remedies and procedures for dealing with complaints alleging violations of this provision. ADA's coverage of Congress was further developed in the Congressional Accountability Act of 1995.

5.7    Alternative Dispute Resolution--42 USC §12212 & 28 CFR §176

ADA encourages the use of alternative means of dispute resolution, where appropriate and to the extent authorized by law. These methods include settlement negotiations, conciliation, facilitation, mediation, fact-finding, mini-trials, and arbitration. However, the use of alternative dispute resolution mechanisms is completely voluntary and is intended to supplement, and not to supplant, the other remedies provided by ADA.

5.8    Severability--42 USC §12213

If one provision of ADA is found to be unconstitutional, it will not automatically invalidate any other provision of ADA.

Endnote

[1] Golden, Marilyn, Kilb, Linda, and Mayerson, Arlene, Americans with Disabilities Act: An Implementation Guide (Berkeley, CA: Disability Rights Education and Defense Fund, 1993). Reprinted with permission, with minor changes.

Appendix C: ADA Mediation Guidelines

The Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law

Yeshiva University

The Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law is the Institutional Home of the ADA Mediation Guidelines.

The ADA Mediation Guidelines and an ongoing discussion of issues related to the Guidelines are posted on the Cardozo Online Journal of Conflict Resolution (COJCR), the original publisher of the Guidelines, at: www.cardozo.yu.edu/cojcr/guidelines.htm.

Mediators, program administrators, mediation consumers, and advocates are encouraged to put the Guidelines into practice and participate in ongoing collaboration regarding their application and development through the discussion group at www.adamediation.org/forum.

This project has been implemented with the support of the Bell Atlantic Foundation and the Center for the Independence of the Disabled of New York.

For more information about the ADA Mediation Guidelines, contact Judith Cohen, Project Coordinator, at 212-741-3758 (Voice/TTY) or coordinator@adamediation.org.

Introduction

The ADA Mediation Guidelines for mediation providers are the product of a national Work Group convened to develop mediation practice guidelines unique to conflicts arising under the Americans with Disabilities Act (42 USC Sec.12101-12213) ("ADA") and similar laws promoting the eradication of discrimination against persons with disabilities.

The ADA Mediation Guidelines were developed between January 1998 and January 2000 by a Work Group composed of 12 mediation practitioners, trainers, and administrators. (See Appendix 3 for the list of Work Group members.) The guidelines address ADA mediation issues in the areas of program and case administration, process, training, and ethics. A draft--and later, the interim standards--were widely distributed for public comment during the development period. The final guidelines could not have been developed at all were it not for the tremendous collaboration and valuable comments contributed by many mediators, stakeholders, and advocates. The Work Group expresses its appreciation to the many people who contributed to this effort.

The term "ADA mediation," as used in this document, applies to programs mediating claims arising under the Americans with Disabilities Act and other disability civil rights statutes, such as the Rehabilitation Act of 1973, the Fair Housing Amendments Act of 1988, and comparable state and local civil rights laws. The mediation of special education disputes raises issues that are not addressed here.

The guidelines provide direction for mediators, administrators, funders, and consumers of ADA mediation. They also provide direction for disability access in any type of mediation involving persons with disabilities, such as family, commercial, or labor mediation. The guidelines are available to be followed voluntarily by individual mediators and mediation provider organizations who wish to signal to potential parties and mediation participants their familiarity with disability issues and their commitment to high-quality ADA mediation services.

In developing the guidelines, the Work Group reviewed existing mediator codes of conduct and other relevant documents to ensure that the guidelines were in keeping with already developed work in the field. The ADA Mediation Guidelines address only issues that are unique to resolving disability-related disputes. The guidelines do not include basic mediation ethics, general principles of administering a mediation program, or educational information about ADA regulations, compliance, or disability access. Codes and resources that informed the development of the guidelines are available to persons seeking additional information on integrating the guidelines into mediation practice (see Appendix 1). Illustrations of the practice implications of certain guidelines appear in appendix 2.

Public policy and legal issues often arise in ADA mediations. These guidelines do not constitute legal advice. Persons interested in ADA mediation are encouraged to consult with attorneys and legal resources for substantive interpretation of the ADA and related disability civil rights statutes and regulations.

The Work Group wishes to thank the Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law, under the direction of Lela P. Love, for providing an institutional home for the ADA Mediation Guidelines. The Cardozo Online Journal of Conflict Resolution (COJCR) maintains a copy of the guidelines on its Web site at www.cardoz.yu.edu/cojcr/guidelines.htm.

An ongoing discussion of issues related to ADA mediation and to the guidelines is posted at www.adamediation.org/forum.

February 16, 2000

ADA Mediation Guidelines

I. Program and Case Administration

This section of the guidelines refers to the administration of mediation programs and to the administration of cases by mediation providers, both mediation provider organizations (any entity that manages or administers mediation services) and private mediators.

A. Program Development

1. Providers, staff, and volunteers involved in ADA mediation in any capacity should be trained in disability-related issues and ADA compliance requirements, according to their particular program's needs and structure.
2. Mediation providers should be responsive to their constituents. The input of people with disabilities and other stakeholders should be considered in program development and evaluation.

B. Disability Access to Mediation

Mediation providers have obligations to make their services accessible to persons with disabilities. These obligations are articulated in ADA Title III (Public Accommodations), under which mediation providers would be considered as "Service Establishments"; in Title II (Public Service) if they are state or local government entities such as publicly funded court or community mediation programs; and in Title I (Employment) for internal employment dispute resolution programs. Mediation provider organizations and private mediators may not charge the individual with the disability for any expenses relating to making the session accessible.

1. ADA mediation providers should make all aspects of mediation--ranging from training to mediation sessions--accessible to persons with disabilities, including parties and other mediation participants, staff, volunteers, and mediators. For these purposes, the broadest definition of disability should be applied, including chronic conditions, episodic symptoms, and temporary disabilities. This is in keeping with generally accepted mediation principles that the parties be able to participate fully in the process. Persons conducting intake or case development should notify the mediator of a case of any disability accommodation required to enable a party's participation in the mediation. (See illustration in appendix 2.)
2. Mediation provider organizations should have in place policies and procedures concerning accessibility for persons with disabilities. Essential components include procedures for requesting a disability accommodation, for grieving the denial of accommodations, and a nondiscrimination policy that includes disability. The policies and procedures should be communicated to the parties, to mediation participants, to mediators, and to staff and volunteers.

C. Mediator Recruitment and Selection

1. ADA mediation presents complex issues, and mediation provider organizations that provide ADA mediator training should select mediators who have mediation experience in addition to training.
   
   Mediation provider organizations that do not provide ADA mediator training should select as mediators only persons who have completed advanced ADA Mediation Training as set out in Section III of these guidelines, or who have equivalent knowledge.
2. Provider organizations should have a diverse pool of mediators. Diversity recruiting efforts should include seeking out qualified mediators who have disabilities.

D. Party Capacity

1. In order for the mediation process to work, the parties must be able to understand the process and the options under discussion and to give voluntary and informed consent to any agreement reached. Mediators and provider organizations, therefore, should determine whether the parties in a mediation have the capacity to do so. In making such determinations, neither the mediator nor the provider organization should rely solely on a party's medical condition or diagnosis. Instead, they should evaluate a party's capacity to mediate on a case-by-case basis, if and when a question arises regarding a party's capacity to engage in the mediation process and enter into a contract.
2. This evaluation should be based on several factors. The mediator should ascertain that a party understands the nature of the mediation process, who the parties are, the role of the mediator, the parties' relationship to the mediator, and the issues at hand. The mediator should determine whether the party can assess options and make and keep an agreement. An adjudication of legal incapacity is not necessarily determinative of capacity to mediate. (See illustration in appendix 2.) However, a mediation agreement signed by a person without legal capacity may require co-signing by a surrogate to ensure its enforceability.
3. Capacity is a decision-specific concept. Capacity to mediate may not be the same as capacity to make financial or health care decisions, to vote, marry, or drive. A party with a judicial determination of incapacity may still be able to participate in mediation. Conversely, a party without such a determination may not have the ability or understanding to participate.
4. If a party appears to have diminished capacity or if a party's capacity to mediate is unclear, the provider organization or the mediator should determine whether a disability is interfering with the capacity to mediate and whether an accommodation will enable the party to participate effectively. If so, the provider organization or the mediator should offer such an accommodation.
5. The provider organization or mediator should also determine whether the party can mediate with support. If a representative, such as an attorney or support person, is present or participating, the party with diminished capacity remains the decision-maker in any agreement.
6. If, despite support, a party lacks capacity to participate in the mediation, mediation should not proceed unless a surrogate participates in the process to represent the interests of the party and make the mediation decisions in place of the party. Surrogates are defined according to state law, and might be agents under durable and health care powers of attorney, guardians, or family members. The surrogate and the person represented by the surrogate should be present and participate when possible. The mediator should encourage the surrogate to express the party's interests, values, and preferences.

E. Party Preparedness

1. Provider organizations and mediators should encourage the parties to become aware of their legal rights and responsibilities under the ADA prior to the mediation so that the parties participate meaningfully and make informed decisions.
2. While providers may supply parties with educational materials, such as booklets on ADA rights and responsibilities, this information is not a substitute for legal representation. Before the mediation session, and at the outset of the session, parties should be advised that they may obtain independent legal or other representation. Parties in an ADA mediation should also be advised of the risks of not being represented by counsel or of not having a potential agreement reviewed by counsel. The provider or mediator may refer parties to resources to seek representation.

F. Referral of Cases to Mediators

The provider organization should provide the mediator with sufficient information about the case to permit the mediator to plan and conduct the mediation competently. Such information may also be conveyed to the mediator directly by the parties or their representatives, if they are represented. Disability-related information will ordinarily be provided by the parties, and other appropriate mediation participants (particularly representatives and resource persons) during the course of the mediation. However, prior knowledge may be critical to the mediator's effective management of the mediation process. Prior knowledge may also alert the mediator to the need for the participation of a resource person in the session, if the parties or their representatives have not already raised this issue.

II. Mediation Process

A. Mediation Techniques or Methods

1. These guidelines do not advocate a particular mediator orientation, strategies, or techniques, except as those may affect disability-related issues.
2. In ADA cases where reasonable accommodations are an issue, the joint session provides an opportunity for the parties to engage in the "interactive process" (favored by the EEOC, courts, and commentators) to identify and evaluate accommodation alternatives (42 USC 12101-1630.9). However, when this process is taking place in the context of mediation, it must be clear that anything said or done--even as part of the interactive process--will remain confidential and inadmissible as evidence in any legal proceeding unless otherwise agreed to by the parties.

B. Other Mediation Participants

The role of some mediation participants may overlap. However, the role of mediation participants should be as clearly defined as possible.

1. Representatives
   
   a) The parties may bring a representative of their choice to the mediation session. A representative is an individual who serves as an agent and advocate for the party, advising, counseling, or presenting the party's views. Unlike a surrogate, who is legally authorized to make decisions on behalf of the party, a representative does not make decisions on the party's behalf. The representative may be a disability rights advocate, expert, vocational rehabilitation counselor, job coach, family member, attorney, union representative, or other person.
   
   b) A party may bring a support person, as a representative or in addition to the representative, to help the party throughout the mediation process, for example by providing emotional or moral support.
   
   c) Where representation might serve the interests of the parties to ensure effective participation and thoughtful decision-making, the mediator may suggest that the parties (or one party) obtain representation.
   
   d) The roles of support person, surrogate, and representative may vary, depending on the circumstances of the parties, a case, or a mediation.
   
2. Neutral experts and resource persons
   
   Supplementary disability-related information might be critical to the resolution of a dispute. The parties may engage experts or, with the parties' permission, the mediator may invite a neutral expert to educate the mediator and the parties about the disability and to assist in developing options.
   
3. Personal assistants
   
   Persons with disabilities may be accompanied by a personal assistant (PA) who is supervised by the person with a disability and provides physical aid or other assistance. The PA should not speak on behalf of the person with the disability or assist with his/her communication, unless requested to do so by that individual.
   
4. Interpreters
   
   A qualified sign language or oral interpreter has the dual role of being a "disability accommodation" for persons who are deaf, hard of hearing, or who have speech disabilities, and of facilitating communication between these persons and other participants in the session. The mediator should allow the interpreter to confer with the individual with a disability to clarify terms before and during the mediation.

III. Mediator Training

A. ADA Mediator Training Contents

At a minimum, ADA mediator training should include the following:

1. Substantive law and procedural issues
   
   a) ADA or other applicable federal or state statutes and/or local ordinances
   
   b) State and federal regulations and policy statements
   
   c) Court decisions applying these legal principles
   
   d) Other related laws (e.g., Family and Medical Leave Act of 1993, Workers Compensation, Age Discrimination in Employment Act, Social Security Disability)
   
   e) Mediating in a unionized setting (for employment mediation training)
   
   f) The administrative processes for handling disability cases in federal, state, and local agencies and the courts, where appropriate
   
   g) Settlement/release and employee benefits options (for resolutions where the employee does not return to work)
   
2. Disability awareness
   
   a) Disability etiquette (see illustration in appendix 2) (appropriate ways to interact with people with disabilities and terminology) (see illustration in appendix 2)
   
   b) Addressing one's own biases about disability (see illustration in appendix 2)
   
   c) Common disabilities, their impact on persons' functioning, and accommodation options
   
   d) Planning and running an accessible session
   
   e) Disability resources, including sources of information and technical assistance
   
3. Practical application
   
   a) Common ADA dispute issues and options in the area to be handled by the mediators (e.g., employment, public accommodations, and housing)
   
   b) Adaptation of mediation techniques to ADA mediation and unique circumstances of people with particular disabilities
   
   c) Ethical considerations
   
   d) ADA Mediation Guidelines

B. ADA Mediator Training Logistics

1. ADA mediator training--for already trained, experienced mediators-should be a minimum of 14 hours in length. The following time guidelines are advisory only, as some subject areas may require more time, based on the needs of the program, and some areas may be combined.
   
   a) Substantive law and procedural issues--3 hours. However, more time may be required, depending on the legal issues covered and the extent of prior legal training of the trainees. Discussion and activities, such as case studies, should be included in addition to lectures. Legal issues are also covered throughout the entire training through discussion, role-plays, and other practical application activities.
   
   b) Disability awareness--3 hours.
   
   c) Practical application--8 hours. In addition to presentation of practical ADA mediation skills, this should include role-plays, discussion, and other participatory activities. Role-play exercises should be designed to reflect the types of disability-related disputes in which the trainees will likely be involved as mediators.
   
2. Training should include at least one opportunity for participants to interact personally with a person who has a disability.
3. Each training participant should participate in role-plays of ADA disputes, including role-play as a mediator, and in debriefing and receiving feedback.
4. A trainer skilled in ADA mediation must be present throughout the training. The section on substantive law and procedural issues may be presented by a nonmediator, and the disability awareness section may be presented by persons with disabilities who do not have mediation expertise.
5. ADA mediation training manuals should include a copy of the laws and regulations applicable to cases that mediators will be mediating, a list of national and local disability-related resources, and basic information about reasonable accommodations and disability etiquette and terminology.
6. Some mediation provider organizations provide ADA mediator training and offer trainees who successfully complete the training opportunities to mediate. Such organizations should require that training participants demonstrate, through an evaluated performance, sufficient competency in the areas of ADA mediation practice addressed in training before providing mediation services. This may be done after an apprenticeship period but before the mediator conducts an unsupervised mediation. ADA mediator training programs that do not provide mediation services do not have an obligation to evaluate training participants.

C. Posttraining/Mediator Support

1. To ensure quality mediation services, mediator feedback and ongoing support and skills development are recommended. Mediator apprenticeship should include observing actual ADA mediation sessions conducted by experienced ADA mediators, conducting ADA mediations with, or observed by, a skilled ADA mediator, and participating in follow-up debriefing with the observing mediator or co-mediator, including an evaluation of the apprentice's performance.
2. Mediators need to keep abreast of developments in ADA and in the ADA mediation field. ADA mediation provider organizations should require that ADA mediators fulfill a certain minimal number of continuing education hours annually, addressing ADA and other disability-related topics. ADA mediation continuing education may include nonmediation areas such as disability-related public hearings, workshops provided by Independent Living Centers and other disability organizations, or workshops on disability issues.

IV. Ethics

The following ethical guidelines are minimum guidelines unique to ADA mediation that mediation provider organizations and mediators should follow. These guidelines should be considered in conjunction with basic ethical standards of mediation, which are not addressed here.

A. Mediator Competency

1. Mediators should have knowledge of disabilities, disability access, and disability law. This includes being aware of general ADA case law developments and guidance issued by regulatory agencies. The ADA mediator needs to have information about the status of the law to work with the parties effectively in exploring the range of settlement options, and to know if the parties are making informed decisions and enforceable agreements.
2. ADA mediators should not accept cases for which they are not qualified. Where particular background information is required for ADA mediations, mediators should acquire legal or disability-related information in order to have sufficient knowledge to mediate the case competently.

B. Fair Process

1. The mediator should encourage parties to seek information and advice from relevant sources during the course of the mediation. Agreements should be based on a clear understanding of the issues, options and facts of the particular case. Agreements should never be coerced by the mediator or by the mediation provider organization. The mediator should make every effort to ascertain whether the parties have a sufficient understanding of their rights and obligations under the ADA, and the implications of any (a) agreement that they reach or (b) decision to reject an offer of settlement.
2. Where the mediator believes that a party(ies) does not understand the implications of a contemplated agreement, the mediator should encourage the parties to consult appropriate sources of information and advice.
3. The mediator should terminate the mediation if he or she believes that the parties' agreement would be inconsistent with principles of mediation ethics (such as those listed here and those articulated in the standards of practice listed in appendix I).
4. The mediator should ask whether the parties have considered the impact of parties who are not at the table, such as a labor union, on the enforceability, successful implementation, or durability of the agreement.

C. Legal and Disability-Related Information

ADA mediators should use their knowledge of the law and disability issues to assess when unrepresented parties need legal or other counsel, or when the participation of an expert or resource person would be advisable. Mediators may encourage one or more of the parties to consider obtaining such assistance where needed. However, such encouragement should be given in a manner that protects the mediation process. Discussing matters of this kind in a private caucus session of the mediation is often preferable to doing so in a joint session.

D. Confidentiality

1. Mediators should maintain confidentiality with respect to disability-related information in arranging access and when conducting the mediation. While the person with the disability may have disclosed his or her disability, there still may be information that the person does not wish to reveal, such as the diagnosis or the severity of his or her limitations or health problems. Where a mediator believes that disclosure of such information would enhance the mediation process or would otherwise be beneficial to the parties, the mediator should invite disclosure by the person with a disability during private caucus but may not disclose the information without the person's permission.
2. If a mediator withdraws from a case because the mediator believes that one or more of the parties does not understand the implications of the agreement or the terms of a potential agreement, or for any other reason, he or she should do so in a manner that protects the confidentiality of the parties' communications in the mediation to the fullest extent legally possible.

Note: These guidelines are not intended to be used in litigation involving the practice of mediation--either as evidence of a standard of due care for ADA mediators or as a measure of "reasonable accommodation" for purposes of establishing liability on the part of mediators. Instead, these guidelines represent a set of aspirational principles and practices that the Work Group recommends to ADA mediators and mediation providers. The Work Group is not a government organization, therefore, its views on the matters addressed in these guidelines do not have the force of law in any jurisdiction unless they are adopted by rule or statute by a government body.

Appendix 1: Resources

The following is a list of some of the codes and protocols that were reviewed by the drafters of the ADA Mediation Guidelines, along with the Web sites where they can be located and a phone number for obtaining copies. These codes and protocols include basic mediation standards that the ADA Mediation Guidelines do not address. There are numerous other codes. Providers and mediators should be aware of developments, including codes of the ethics and mediation practice standards, in their own jurisdictions.

"A Due Process Protocol for Mediation and Arbitration of Statutory Disputes Arising Out of the Employment Relationship,"
5/9/95, www.adr.org (under "Protocol")
212-716-3981
American Arbitration Association (AAA)

"Ethical Guidelines of Professional Responsibility,"
6/86, www.spidr.org
202-667-9700
Society of Professionals in Dispute Resolution (SPIDR)

"Model Standards of Conduct for Mediators" 1994
American Arbitration Association/American Bar Association/Society of Professionals in Dispute Resolution
www.adr.org
212-716-3981, AAA
(Under "Rules & Procedures, Ethics & Guidelines")

"Guidelines for Voluntary Mediation Programs Instituted by Agencies Charged with Enforcing Workplace Rights"
1/24/98, www.spidr.org
202-667-9700 SPIDR

"Quality Assurances Statement"
6/96, www.nafcm.org
202-667-9700
National Association for Community Mediation (NAFCM)

Federal Enforcement Agencies

Equal Employment Opportunity Commission (EEOC)
www.eeoc.gov
800-669-EEOC (voice), 800-800-3302 (TTY) (for deaf and speech impaired telephone users)
Documents on ADA employment issues, including policy guidance:
800-669-4000 (V) 800-669-6820 (TTY)
Guidance on ADA employment issues.

Access Board
www.access-board.gov
800-USA-ABLE (V/TTY)
Technical assistance and documents on the ADA Accessibility Guidelines and Architectural Barriers Act, and enforces Architectural Barriers Act.

Department of Justice, Civil Rights Division
www.usdoj.gov/crt/ada/adahom1.htm
800-514-0301 (V), 800-514-0383 (TTY)
ADA information, documents, and technical assistance (Titles II/public service and III/public accommodations, Section 504 of the Rehabilitation Act). Issues quarterly reports.

U.S. Department of Transportation
www.fta.dot.gov
888-446-4511 (Voice only)
Enforces ADA provisions governing mass transportation systems and services.

Department of Housing and Urban Development, Office of Fair Housing and Equal Opportunity
800-343-3442 (V), 800-483-2209 (TTY)
Enforces disability rights in housing.

Federal Communications Commission
www.fcc.gov
Documents 202-857-3800 (V), 202-293-8810 (TTY)
Questions 202-418-1898 (V), 202-418-2224 (TTY)

Note: These Web sites have links to other disability-related Web sites.

Other Disability Resources

Job Accommodations Network (JAN)
janweb.icdi.wvu.edu/english/homeus.htm
800-ADA-WORK (Voice/TTY)
A service of the President's Committee on Employment of People with Disabilities
Information and guidance on reasonable accommodations in the workplace.

ADA Disability and Business Technical Assistance Center (DBTAC)
www.adata.org
800-949-4232 (V/TTY)
Technical assistance on rights and responsibilities under the ADA.

The American Bar Association (ABA) Commission on Mental and Physical Disability Law
www.abanet.org/disability
202-662-1570
Directory of attorneys specializing in disability law.

The ABA Commission on Mental and Physical Disability Law and commercial enterprises such as BNA, LRP, Commerce Clearing House, Thompson, and Prentice Hall publish disability law reporters, which are a good source for keeping up-to-date with case law.

Disability Awareness Materials

"Targeting Disability Needs: A Guide to the Americans with Disabilities Act for Dispute Resolution Programs" published by the American Bar Association, the American Association of Retired Persons, and the National Institute for Dispute Resolution. Order through The American Bar Association (ABA) Commission on Mental and Physical Disability Law www.abanet.org/disability
202-662-1570

"Disability Etiquette: Tips on Interacting with People with Disabilities," published by Eastern Paralyzed Veterans Association. Order through EPVA hotline:
publications@epva.org
800-444-0120

"Making Dispute Resolution Sessions Accessible to People with Disabilities" by Judy Cohen, SPIDR News, Spring 1997.
(Society for Professionals in Dispute Resolution, 202-667-9700, and at www.mediate.com/articles.)

Appendix 2: Supplemental Examples

I. Program and Case Administration

B. Disability Access to Mediation

1. ADA mediation providers should make all aspects of mediation--ranging from training to mediation sessions--accessible to persons with disabilities, including parties and other mediation participants, staff, volunteers, and mediators. ...Persons conducting intake or case development should notify the mediator of a case of any disability accommodation required to enable a party's participation in the mediation. (See example below)

Inaccessible case scenario: A person who has self-identified as having a traumatic brain injury (TBI) has trouble sequencing and has poor short-term memory. She is unable to keep track of the proceedings, repeats herself, can't organize her responses, and asks questions that have already been answered. The mediator believes that she's being disruptive, not paying attention, and not participating in good faith. The process breaks down.

Same scenario, with mediator who uses effective process adaptations: Having been informed that the party has TBI, the mediator--before the session--inquires as to the person's needs and limitations in order to make the session accessible. Based on the person's input, the mediator periodically reviews what has been said in the session, and works with a flip chart so that the person with TBI can follow and participate in the proceedings. Alternately, if the mediator was not informed before the session, she inquires about the person's needs during a private caucus, even if she is knowledgeable about TBI, as it affects people differently.

D. Party Capacity

2. "... An adjudication of legal incapacity is not necessarily determinative of capacity to mediate."

For example, a resident of a nursing home who is legally incapacitated may have disputes with a roommate about space or TV, or with staff about eating or dressing schedules. This person may have the capacity to participate in mediation regarding these issues. Also, persons may be under limited guardianships. For instance, a person could have a guardian (sometimes called a conservator) for financial decisions but not for health care or personal decisions, and so this person could participate in a mediation about health care treatment.

III. Mediator Training

A. ADA Mediator Training Contents

2. Disability awareness

    a) Disability etiquette ¹

Scenario without disability etiquette: A blind man is a party to a mediation. The mediator starts the session by saying the names of the parties, their advocates and the other mediation participants and gesturing toward each as he or she says the name. The blind man, feeling disempowered because this introduction was not accessible to him, feels uncomfortable. He spends the session wondering who is speaking and has trouble following the course of the session.

Same scenario, with the mediator using disability etiquette: The mediator starts off the session by going around the table and having each person, including observers, say their name and their role in the mediation. The blind man is able to identify who is speaking by voice and location. He has equal access to participate fully in the session.

Scenario without disability etiquette: There is a sign language interpreter at a mediation because one of the parties is deaf. The mediator starts the session without mentioning the presence of the interpreter (he or she wants to be sensitive and not call attention to the deaf person). The interpreter voices for the deaf person, and the hearing persons all look at the interpreter as she speaks. When they have comments or questions for the deaf person, they also address these to the interpreter. As a result, the deaf person feels ignored and does not experience herself as an equal participant in the session. She finally gives up and says less and less, since no one seems to be listening or talking to her.

Same scenario, with mediator using disability etiquette: The mediator opens the session by explaining that the interpreter is there to facilitate communication between deaf and hearing participants, and that the mediation participants should address each other and not the interpreter. Result: the deaf person is able to communicate on an equal basis with the other mediation participants.

A. ADA Mediator Training Contents

1. Disability awareness

    a) Appropriate terminology

Scenario with inappropriate terminology: A person who uses a wheelchair is a party to a mediation. The mediator refers to her as being "wheelchair bound." The wheelchair user is offended by the term, and feels that the mediator must be on the other party's side or at least cannot possibly understand her perspective.

Same scenario, with mediator using appropriate terminology: The mediator refers to the party as "using a wheelchair." This term may strike the wheelchair user as neutral or may lead her to believe that the mediator will understand the issues at hand.

A. ADA Mediator Training Contents

2. Disability awareness

    b) Addressing one's own biases about disability

Scenario, where mediator is not aware of his or her own biases: An employee with major depression has been disciplined for excessive tardiness. The mediator assumes that the employee is ashamed of having depression, and carefully avoids discussing it with him--either in arranging the session or during it. The session is scheduled for 8:00 a.m. When the mediator confirms the date and time with the employee, he says, "Oh, well, okay." The mediator takes that as a "yes." The employee arrives 30 minutes late for the mediation and looks disheveled. The supervisor is exasperated, saying, "See? This is what I have to put up with every day." The employee seems "out of it" and participates less and less as the session goes on. The mediator is beginning to wonder how he ever held a job in the first place, and unconsciously discounts the few remarks that the employee makes. In private caucus, the mediator starts by raising questions about the possible consequences of the employee's tardiness. The employee looks as though he's about to cry, then silently gets up and leaves the room, then the premises.

Same scenario, but with a mediator who is informed and unbiased about psychiatric disabilities: The mediator is aware that passivity can be a barrier to full participation in mediation for people who are depressed, and knows that psychiatric medications can have side effects that affect the person's functioning. In confirming the time of the mediation with the employee, the mediator notices the employee's hesitancy, and adds, "You know, I have been informed that you have major depression. I wanted to be sure to talk to you about that before the session. Is there anything you want me to know about how this condition or any treatment you're receiving for it might be affecting you?" The employee is relieved to have this opening and speaks for several minutes about how sedated he feels in the morning because of his antidepressant medications, and how much energy it has taken to get to work at all, albeit late. After listening, the mediator asks if the employee is comfortable with the proposed schedule or would like to propose another time. The mediation is scheduled for 11:00 a.m., when the employee is most alert and able to concentrate and participate.

Endnote

¹ Disability etiquette is the "cultural" aspect of interacting with persons who have disabilities. Observing disability etiquette not only makes the person with a disability more comfortable, but also contributes to the accessibility of the process.

Appendix 3: ADA Mediation Guidelines Work Group Members

Melissa Brodrick, Board Member, National Association for Community Mediation (NAFCM), Belmont, MA

Judith Cohen, Mediator and Executive Director, Access Resources, New York, NY (ADA Mediation Guidelines Work Group Coordinator)

Samuel H. DeShazer, Planning Committee Member and Faculty, Institute for ADA Mediation (Hall, Render, Killian, Heath & Lyman, PSC), Louisville, KY

Art Finkle, New Jersey SPIDR; Alternative Dispute Resolution Director, New Jersey Department of Personnel; and Associate Professor, Rider University, Graduate Program of Education and Human Services, Trenton, NJ

Winnie M. Hargis, Private Mediator and ADA Consultant, Dalton, GA

David Hoffman, American Bar Association Section of Dispute Resolution (Hill & Barlow), Boston, MA

Laura L. Mancuso, Independent Consultant and Mediator, Goleta, CA

Kathryn McCarty, American Bar Association Section of Dispute Resolution and Co-President, ADR Vantage, Washington, DC

Alice Norman, Mediator/Civil Rights and Accessibility Specialist, U.S. Department of Interior, Boise, ID

Elizabeth Plapinger, Advisor, CPR Institute for Dispute Resolution, New York, NY

Anne B. Thomas, Director of EEO, University of New Mexico, Albuquerque, NM

Doug Van Epps, Director, Office of Dispute Resolution, Michigan Supreme Court, Michigan State Court Administrative Office, Lansing, MI

Note: Work Group members who represent organizations listed above functioned as liaisons. Their participation does not indicate organizational endorsement of the guidelines.

Reproduction and distribution of the ADA Mediation Guidelines is encouraged.

Single copies of the ADA Mediation Guidelines are available from:

American Bar Association Section of Dispute Resolution, 202-662-1680.

National Association for Community Mediation, 202-667-9700, ext. 224 (contact person: Thameenah Muhammed)

CUNY Dispute Resolution Consortium, 212-237-8692

Kukin Program for Conflict Resolution at Benjamin N. Cardozo School of Law, 212-790-0365 (contact person: Professor Lela P. Love)

For single copies in alternative formats (braille, large print, audiotape, computer disk), call 212-790-0365 or e-mail coordinator@adamediation.org.

The Kukin Program for Conflict Resolution

Benjamin N. Cardozo School of Law
55 Fifth Avenue
New York, NY 10003
New York, NY 10003
212-790-0365
Fax 212-790-0256

Appendix D: List of Persons Interviewed

Department of Education

Elinor Baker, Customer Service, Office for Civil Rights

Rebecca Fitch, Office for Civil Rights

Eileen Hanrahan, Office for Civil Rights

Tin-Ting Wang, Office for Civil Rights

Joseph DePhillips, Rehabilitation Program Specialist, National Institute on Disability and Rehabilitation Research

Equal Employment Opportunity Commission

Kathleen Courtney, Senior Attorney, ADA Policy Division

Celeste Davis, Supervisory Attorney, Chicago District Office

Christopher J. Kuczynski, Assistant Legal Counsel, Director of the ADA Policy Division

Peggy Mastroianni, Associate Legal Counsel, Coordination and Guidance Services

Paul Miller, Commissioner

Susan Oxford, Attorney, Advisor to the General Counsel, Office of the General Counsel

Adele Rapport, Regional Attorney, Detroit District Office

Leo Sanchez, Director, Charge Data System Division

Nancy Siegel, Assistant to Commissioner Miller

Department of Health and Human Services

Omar Guerrero, Deputy Director, Office for Civil Rights

Trish Mackey, Deputy to the Associate Deputy Director of the Office of Program Operations, Office of Program Operations

Department of Justice

Elizabeth Bacon, Certification and Coordination, Disability Rights Section

Jim Bostrom, Architect, Disability Rights Section

Irene Bowen, Deputy, Disability Rights Section

Janet Blizard, Certification and Coordination, Disability Rights Section

Phil Breen, Special Legal Counsel, Disability Rights Section

Sally Conway, Technical Assistance Unit, Disability Rights Section

Thomas Esbrook, Investigator, Disability Rights Section

Ruth Lusher, Director, Technical Assistance Unit, Disability Rights Section

Ed Miller, Trial Attorney, Disability Rights Section

Naomi Milton, Acting Supervisory Attorney, Disability Rights Section

Allison Nichol, Deputy, Disability Rights Section

Bebe Novich, Trial Attorney, Disability Rights Section

Joe Russo, Trial Attorney, Disability Rights Section

Elizabeth Savage, Counsel to the Assistant Attorney General, Civil Rights Division

Dan Sering, Administrator, Disability Rights Section

Jessica Silver, Principal Deputy Chief, Appellate Section, Civil Rights Division

Janine Warden, Disability Rights Section

Sally Willis, Technical Assistance Unit, Disability Rights Section

John Wodatch, Section Chief, Disability Rights Section

Renee Wohlenhaus, Deputy, Disability Rights Section

Department of Labor

Joyce Brown, Regulations Branch, Policy Division

Jeff Brown, Compliance Office, Washington District Office, Office of Federal Contract Compliance Programs

Randy Cooper, Special Assistant to the Deputy Assistant Secretary

Joyce Dorey, Division of Management and Administration

David Gregal, Policy Division Branch

Frankie Taylor, Quality Assurance

Department of Transportation

Robert Ashby, Deputy Assistant General Counsel for Regulation and Enforcement, Department of Transportation

Will Baccus, Deputy Associate Counsel for General Law, Federal Highway Administration Office of the Chief Counsel

Mark Brenman, Senior Policy Advisor, Departmental Office of Civil Rights

Aretha Carr, Equal Opportunity Specialist, Federal Highway Administration Office of Civil Rights

Alex Chavrid, Passenger Programs Division, Federal Railroad Administration

Irv Chor, Office of Program Guidance and Support, Federal Transit Administration

Heidi Coleman, Chief of the General Law Division, National Highway Traffic Safety Administration Office of the Chief Counsel

John Cross, Staff Attorney, Federal Aviation Administration Office of the Chief Counsel

Gary DeLorme, Office of Program Guidance and Support, Federal Transit Administration

Marina Drancsak, Office of Research Management, Federal Transit Administration

George Duffy, Program Operations Division Chief, Federal Highway Administration Office of Civil Rights

Ed Fleischman, Director, Office of Oversight, Federal Transit Administration

Michael Freilich, Acting Chief, External Program and Policy Development Division, Departmental Office of Civil Rights

Dave Goldberg, Attorney-Advisor, Civil Rights Law, Assistant General Counsel for Environmental, Civil Rights, and General Law, Department of Transportation Office of General Counsel

Cheryl Hershey, Equal Opportunity Specialist, Office of Civil Rights, Federal Transit Administration

Bert Jackson, Acting Civil Rights Director, Federal Railroad Administration Office of Civil Rights

Nancy Johnson, Equal Opportunity Specialist, Federal Highway Administration Office of Civil Rights

Mary Jones, Deputy Assistant Administrator, Federal Aviation Administration Office of Civil Rights

Douglas Kerr, Director, Office of Program Guidance and Support, Federal Transit Administration

Ira Laster, Policy Analyst, Office of the Assistant Secretary for Transportation Policy

Arthur Andrew Lopez, Director, Federal Transit Administration Office of Civil Rights

Ray Lopez, Office of Program Guidance and Support, Federal Transit Administration

April Marchese, Special Assistant to the Chief Counsel, Federal Highway Administration Office of the Chief Counsel

Nancy McFadden, General Counsel, Department of Transportation Office of General Counsel

Dave Micklin, External Program Team Leader, Federal Aviation Administration Office of Civil Rights

Mary Elizabeth Peters, Equal Opportunity Specialist, Office of Civil Rights, Federal Transit Administration

Joe Pomponio, Trial Attorney, Federal Railroad Administration Office of the Chief Counsel

George Quick, Director, National Highway Traffic Safety Administation Office of Civil Rights

Rhonda Reed, Equal Opportunity Specialist, Federal Transit Administration, Region 5

Fanny Rivera, Assistant Administrator, Federal Aviation Administration Office of Civil Rights

Dave Sett, Attorney Advisor, Federal Highway Administration, Office of the Regional Counsel, Atlanta, Georgia

Nancy Solkowski, Office of Resource Management and State Programs, Federal Transit Administration

Ron Stroman, Director, Departmental Office of Civil Rights

Harry Takai, Equal Opportunity Specialist, Coast Guard Office of Civil Rights

Michael A. Winter, Associate Administrator for Budget and Policy, Federal Transit Administration Office of Budget and Policy

Roberta Wolgast, Equal Opportunity Specialist, Office of Civil Rights, Federal Transit Administration

Richard Wong, Attorney, Office of the Chief Counsel, Federal Transit Administration

U.S. Commission on Civil Rights

Frederick Isler, Assistant Staff Director for Civil Rights Evaluation

Rebecca Kraus, Senior Social Scientist, Office of Civil Rights Evaluation

Nadja Zalokar, Supervisory Civil Rights Analyst, Office of Civil Rights Evaluation (formerly)

Margaret Butler, Civil Rights Analyst, Office of Civil Rights Evaluation

Other Organizations

Maripat Brennan, TRS Manager, National Exchange Carrier Association, Inc.

Gil Becker, Director, Communications Access of Maryland Program, Maryland Department of Budget and Management

Dennis Cannon, Accessibility Specialist, Office of Technical and Information Services, U.S. Architectural and Transportation Barriers Compliance Board

Mel Fowler, Office of Equal Opportunity, U.S. Department of the Interior

Robert Gattis, Project Manager, ADA Impact Measurement System, Rocky Mountain Disability and Business Technical Assistance Center

Chris Griffin, Director, Disability Law Center, Boston, Massachusetts.

Pam Gregory, Deputy Director, Disabilities Issues Task Force, FCC

Bill Henning, Cape Organization for Rights of Disabled

Shelley Kaplan, Executive Director, ADA Resource Center, Southeastern Regional Disability and Business Technical Assistance Center

Rick Seymour, Attorney, Lawyers Committee for Civil Rights Under Law, Washington, D.C.

Roslyn M. Simon, Senior Director, Customer Advocacy, Amtrak

Nancy Smith, Executive Director, Project ACTION

Sara Ulis, Customer Satisfaction Service Center Advisor, Amtrak

Karen Peltz Strauss, Legal Counsel to Consumer Action Network and the National Association of the Deaf

Norma Jane Vesco, Executive Director, Independent Living Center of Southern California Federal Enforcement of the ADA: Appendix D

Appendix E: Description of the Milwaukee County Experience with a Voluntary Compliance Agreement: Perspective of a Community Member

To: Lee Schulz, Executive Director, IndependenceFirst

From: Mike Bachhuber, PAIR Advocacy Specialist, Wisconsin Coalition for Advocacy ¹

I found the fax regarding the DREDF evaluation and wanted to expand upon my telephone comments. I am arranging a meeting with Rep. Barrett to see what he can do to get better results. These are the problems we have identified and believe require action.

DOT/FTA relies almost entirely upon self-reporting to determine if its grantees comply with 504/ADA. Until the Milwaukee disability community organized complaint-writing sessions in the fall of 1997, most riders did not know such an agency existed. Because of this, the FTA did not know the depth of complaints about Milwaukee paratransit service.

It was hard to give much credibility to the agency in light of these facts. The lack of credibility was aggravated by statements from various FTA staff that they are not an enforcement agency, despite the fact that 504 and the ADA make them an enforcement agency. We were told, among other things, that no one in the agency ever remembered referring a complaint to the Department of Justice for enforcement.

The FTA sent form letters to notify complainants that their complaints were assigned to the regional office. No follow-up was done to see if the complaints were resolved. When I called to follow one complaint, I was told that the VCA process was the entire agency response to the complaints. This caused a greater loss of confidence in the agency.

The VCA was negotiated between FTA and Milwaukee County. No opportunity was given to complainants, the disability community, or others to have a voice in that process. As a result, the plan avoided several features in the existing paratransit service plan that were important to the disability community (e.g., door-to-door service with one-step limitation replaced door-through-door service) without an opportunity for the affected parties to have input.

FTA was aware that a service area problem existed in Milwaukee. Despite the fact that WCA and others had contacted the FTA regarding problems and that several commenters on the last plan, in FTA possession, raised these issues, the FTA relied solely on Milwaukee County's position. Milwaukee County argues that it can not provide paratransit service across county lines because of section 59.58(3)(j)1., Wis. Stats. It argues that this statute constitutes a barrier excusing compliance with service area requirements under 49 CFR §37.131(a)(1) and (3) despite the facts that (1) the statute was passed after the ADA regulations clarified the duty of public entities to provide paratransit service to allow counties to avoid that duty; (2) the statute does not prevent the county from operating transit services across county lines, since county buses operate across county lines and even paratransit service is provided across county lines where contracts exist to allow that service; (3) Waukesha County, subject to the same statutes, freely operates its paratransit service across county lines; and (4) the county has not complied with the recommendations of SEWRPC, the regional planning agency, that would provide for coordination of rides across county lines even though Milwaukee County vans might not be required to cross the county line. The FTA accepted Milwaukee County's statements that a legal barrier existed because it did not investigate.

The VCA itself primarily consisted of milestones in redesigning, letting, and implementing contracts for the van service. Each of the milestones was met. The VCA, however, was necessitated by Milwaukee County's failure to meet response time, capacity, and other requirements under ADA regulations. Universal access to next-day service is still not available. Excessive trip lengths, late pick-ups, and other capacity constraints are still common. We have been told the regional office recommended closing the enforcement file concerning Milwaukee County based solely upon the County's self report. Again, complainants and other interested parties were not contacted nor was any independent investigation done.

Our involvement in trying to improve the quality of paratransit in Milwaukee County has shown many problems. Some involve the hidden nature of the FTA and its complaint process. Others involve the way it investigates, or fails to do so, the claims of transit agencies and even complaints made against the agencies. We also discovered problems that are not related to the VCA.

The FTA could have a more effective process if it required transit agencies to prominently display notices in all vehicles used by transit systems that any discrimination complaints can be made to the FTA. Notices should include the FTA address and phone number. This could be further improved by requiring the agencies to notify all people who complain to them about paratransit service or other discrimination issues that complaints can be made to the FTA.

The FTA should also be required to do better follow-up with complainants. Those who have taken the effort to raise a complaint to that level should receive the courtesy of follow-through. Files should not be closed without contacting the complainants to verify that the problems have been rectified.

FTA regulations in many areas should provide a better level of protection for the rights of people with disabilities. While I have not gone into this in detail, we believe eligibility determination regulations are one area where clarification would help.

Finally, just to update you: When we filed the lawsuit, the County tried to interpose the VCA as a defense. That effort did not go far.

As you are aware, the first step was our motion for a preliminary injunction. That was resolved with a partial settlement that provided for greater consumer input in running the program and specific promises to maintain and improve service during the interim, "redesign" period.

We are now involved in substantive discussions regarding the remaining issues. The primary areas of concern involve commitments to service levels, consumer/public input, eligibility determinations, and service area. We are trying to involve the Transit Plus Advisory Council as an ongoing agent to monitor service and involve consumers in policy development and planning. We are trying to get commitments regarding service area and other service deficiencies and eligibility.

Endnote

¹ This note was forwarded to M. Golden on February 23, 1999. Date of original memo unknown.

Appendix F: Acronyms and Abbreviations

AAG -- assistant attorney general

AASSWB -- American Association of State Social Work Boards

ABA -- Architectural Barriers Act

AC -- Advisory Circular

ACAA -- Air Carriers Access Act

Access Board -- Architectural and Transportation Barriers Compliance Board

ACIRR -- Advisory Commission on Intergovernmental Relations Report

ACTION -- Accessible Community Transportation in Our Nation

ADA -- Americans with Disabilities Act

ADAAG -- ADA Accessibility Guidelines

ADA-TAC -- ADA Technical Assistance Coordinator

ADEA -- Age Discrimination in Employment Act

ADR -- alternative dispute resolution

AG -- attorney general

AIM -- ADA Impact Measurement

ANI -- automatic number identification

ANSI -- American National Standards Institute

ASI -- Assessment Systems, Inc.

ASL -- American Sign Language

AVLS -- automatic vehicle location system

CA -- communications assistant

CAN -- Consumer Action Network

CBA -- collective bargaining agreement

CBU -- Core Business Unit

CDC -- Centers for Disease Control

CDS -- Charge Data System

CIL -- Center for Independent Living

CMS -- Case Management System

COR -- Council of Organizational Representatives on National Issues Concerning People Who Are Deaf or Hard of Hearing

CORD -- Cape Organization for Rights of the Disabled

CRIPA -- Civil Rights of Institutionalized Persons Act

DBTAC -- Disability and Business Technical Assistance Center

DOCR -- Departmental Office of Civil Rights

DOE -- Department of Energy

DoED -- Department of Education

DOI -- Department of the Interior

DOJ -- Department of Justice

DOL -- Department of Labor

DOT -- Department of Transportation

DREDF -- Disability Rights Education and Defense Fund

DRS -- Disability Rights Section

EEOC -- Equal Employment Opportunity Commission

EPA -- Equal Pay Act

FAA -- Federal Aviation Administration

FAAOCR -- FAA Office of Civil Rights

FACA -- Federal Advisory Committee Act

FCC -- Federal Communications Commission

FEPA -- Fair Employment Practices Agency

FHAA -- Fair Housing Amendments Act of 1988

FHWA -- Federal Highway Administration

FHWAOCR -- Federal Highway Administration Office of Civil Rights

FIR -- field-initiated research

FRA -- Federal Railroad Administration

FRAOCR -- FRA Office of Civil Rights

FTA -- Federal Transit Administration

FTAOCR -- FTA Office of Civil Rights

FTATPM -- FTA Program Management Office

HCO -- hearing carry over

HHS -- Department of Health and Human Services

HUD -- Department of Housing and Urban Development

IDEA -- Individuals with Disabilities Education Act

ISTEA -- Intermodal Surface Transportation Equity Act

J memo -- justification memo

JAN -- Job Accommodation Network

LEP -- Local Enforcement Plan

LSAT -- Law School Admission Test

MDTS -- mobile data terminal system

MOU -- memorandum of understanding

MRS -- multilingual relay service

NAD -- National Association of the Deaf

NARIC -- National Rehabilitation Information Center

NCAA -- National Collegiate Athletic Association

NCD -- National Council on Disability

NECA -- National Exchange Carriers Association, Inc.

NEP -- National Enforcement Plan

NHTSA -- National Highway Traffic Safety Administration

NHTSAOCR -- NHTSA Office of Civil Rights

NIDRR -- National Institute on Disability and Rehabilitation Research

NOI -- Notice of Inquiry

NPRM -- Notice of Proposed Rulemaking

NTP -- National Training Project

OFCCP -- Office of Federal Contract Compliance Programs

OFP -- Office of Field Programs

OGC -- Office of the General Counsel

OMB -- Office of Management and Budget

OSERS -- Office of Special Education and Rehabilitative Services

OST -- Office of the Secretary

OTIS -- Office of Technical and Information Services

PCEPD -- President's Committee on Employment of People with Disabilities

PGA -- Professional Golf Association

RFP -- Request for Proposals

ROI -- Report of Investigation

SBU -- Service Business Unit

SG -- solicitor general

SLS -- Special Litigation Section

SSDI -- Social Security Disability Insurance

STS -- speech-to-speech

TA -- technical assistance

TAC -- Technical Assistance Coordinator

TAPS -- Technical Assistance Program Seminar

TEA 21 -- Transportation Equity Act for the 21st Century

TE -- time extension

TRB -- Transportation Research Board

TRS -- telecommunications relay services

TTY -- telephone typewriters

U.S.C. -- United States Code

UFB -- undue financial burden

UMTA -- Urban Mass Transportation Administration

USCCR -- U.S. Commission on Civil Rights

USCG -- U.S. Coast Guard

USCGOCR -- USCG Office of Civil Rights

VCA -- voluntary compliance agreement

VCO -- voice carry over

VRI -- video relay interpreting

WCA -- Wisconsin Coalition for Advocacy

WMATA -- Washington Metropolitan Area Transit Agency

Appendix G: Mission of the National Council on Disability

Overview and Purpose

The National Council on Disability (NCD) is an independent federal agency with 15 members appointed by the President of the United States and confirmed by the U.S. Senate.

The overall purpose of NCD is to promote policies, programs, practices, and procedures that guarantee equal opportunity for all individuals with disabilities, regardless of the nature or severity of the disability; and to empower individuals with disabilities to achieve economic self-sufficiency, independent living, and inclusion and integration into all aspects of society.

Specific Duties

The current statutory mandate of NCD includes the following:

• Reviewing and evaluating, on a continuing basis, policies, programs, practices, and procedures concerning individuals with disabilities conducted or assisted by federal departments and agencies, including programs established or assisted under the Rehabilitation Act of 1973, as amended, or under the Developmental Disabilities Assistance and Bill of Rights Act; as well as all statutes and regulations pertaining to federal programs that assist such individuals with disabilities, in order to assess the effectiveness of such policies, programs, practices, procedures, statutes, and regulations in meeting the needs of individuals with disabilities.
• Reviewing and evaluating, on a continuing basis, new and emerging disability policy issues affecting individuals with disabilities at the federal, state, and local levels and in the private sector, including the need for and coordination of adult services, access to personal assistance services, school reform efforts and the impact of such efforts on individuals with disabilities, access to health care, and policies that act as disincentives for individuals to seek and retain employment.
• Making recommendations to the president, congress, the secretary of education, the director of the National Institute on Disability and Rehabilitation Research, and other officials of federal agencies about ways to better promote equal opportunity, economic self-sufficiency, independent living, and inclusion and integration into all aspects of society for Americans with disabilities.
• Providing Congress, on a continuing basis, with advice, recommendations, legislative proposals, and any additional information that NCD or Congress deems appropriate.
• Gathering information about the implementation, effectiveness, and impact of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.).
• Advising the president, Congress, the commissioner of the Rehabilitation Services Administration, the assistant secretary for Special Education and Rehabilitative Services within the Department of Education, and the director of the National Institute on Disability and Rehabilitation and Research on the development of the programs to be carried out under the Rehabilitation Act of 1973, as amended.
• Providing advice to the commissioner of the Rehabilitation Services Administration with respect to the policies and conduct of the administration.
• Making recommendations to the director of the National Institute on Disability and Rehabilitation Research on ways to improve research, service, administration, and the collection, dissemination, and implementation of research findings affecting persons with disabilities.
• Providing advice regarding priorities for the activities of the Interagency Disability Coordinating Council and reviewing the recommendations of this council for legislative and administrative changes to ensure that such recommendations are consistent with NCD's purpose of promoting the full integration, independence, and productivity of individuals with disabilities.
• Preparing and submitting to the president and Congress an annual report titled National Disability Policy: A Progress Report.

International

In 1995, NCD was designated by the Department of State to be the U.S. government's official contact point for disability issues. Specifically, NCD interacts with the special rapporteur of the United Nations Commission for Social Development on disability matters.

Consumers Served and Current Activities

While many government agencies deal with issues and programs affecting people with disabilities, NCD is the only federal agency charged with addressing, analyzing, and making recommendations on issues of public policy that affect people with disabilities regardless of age, disability type, perceived employment potential, economic need, specific functional ability, status as a veteran, or other individual circumstance. NCD recognizes its unique opportunity to facilitate independent living, community integration, and employment opportunities for people with disabilities by ensuring an informed and coordinated approach to addressing the concerns of persons with disabilities and eliminating barriers to their active participation in community and family life.

NCD plays a major role in developing disability policy in America. In fact, it was NCD that originally proposed what eventually became the Americans with Disabilities Act (ADA). NCD's present list of key issues includes improving personal assistance services, promoting health care reform, including students with disabilities in high-quality programs in typical neighborhood schools, promoting equal employment and community housing opportunities, monitoring the implementation of ADA, improving assistive technology, and ensuring that those persons with disabilities who are members of diverse cultures fully participate in society.

Statutory History

NCD was initially established in 1978 as an advisory board within the Department of Education (Public Law 95-602). The Rehabilitation Act Amendments of 1984 (Public Law 98-221) transformed NCD into an independent agency.