All public entities (towns, cities, counties and states) are subject to Title II of the Americans with Disabilities Act. State and local government’s programs, services, and activities, when viewed in their entirety, must be readily accessible to and useable by people with disabilities. There are very few reasons to avoid compliance. There aren’t any grandfather clauses, nor are towns or villages exempt from compliance based on size. Moreover, if a public entity receives federal funding, and most do, other federal disability laws also come into play with similar or additional requirements
The law generally places compliance evaluation and ongoing management in the hands of the public entity. Every entity, for example, is required to conduct a self-evaluation of all public buildings, public right-of-ways (sidewalks, multi-use trails, curb cuts, crossings, etc.), public medical facilities, and public parks for compliance. Often overlooked is the requirement to evaluate access to and provide an equal opportunity to participate in, or benefit from, all public programs.
Entities with more than 50 employees have additional responsibilities under the Act. They are also required to have a published accessibility grievance policy, assign accessibility compliance and grievance management responsibilities to at least one individual, and document compliance management via a Transition Plan.
Although we have never spoken with a community leader who did not want to take care of disabled citizens, many don’t have a transition plan or, if they have one, it’s out of date and doesn’t match the current condition of their community. Failure to have a plan, or to follow it, can be a serious problem, especially if a Department of Justice complaint is filed. But there are several reasons why an up-to-date transition plan makes sense. Here are a few:
- A Transition plan is required by law.There are few defenses to an entity for failing to actively manage the rights of people with disabilities. The arguments that grandfather clauses exist, a lack of available funds, or that the community is too small are not always valid. Nor is it reasonable for an entity to depend on a Transition Plan that was developed in the distant past.
Despite the legal requirements, many entities believe that enforcement of the law is unlikely. In fact, we have often heard community administrators say, “We’re not worried. There aren’t any ADA police”.
Wrong! The reality is that ADA does have an active investigation process that isn’t necessarily triggered by a citizen complaint. Project Civic Access (https://www.ada.gov/civicfac.htm) was launched as a proactive initiative by the Department of Justice in 1999. Since then over 200 cases have been settled which include settlements in all 50 states. The majority of compliance reviews occurred in small cities and towns because they represent the most common form of local government.
The investigation process is broad and deep, usually involving a review of all built facilities and city programs. This means, for example, schools, municipal services (polling station, water, sewer, fire, police, detention centers), public rights-of-way, sidewalks, curb cuts, crossing signals and more. (See sidebar reviews of recent Project Civic Access cases)
- Prevent Unplanned and Unexpected Consequences.The findings of Project Civic Access investigations and/or investigation triggered by bone- fide citizen complaints don’t go on the shelf. An aggressive, comprehensive plan to bring the entity into compliance, usually within 36 months, is imposed on the entity by the Department of Justice. Existing municipal construction, maintenance, and repair plans may be placed on hold. Budgets may be displaced. Personnel may be redirected and goodwill may take a hit.
Therefore, failing to conduct and actively manage self-inspections or postponing Transition Plan responsibilities may be a costly mistake. Take, for example, the case of Medford, Oregon where immediate compliance requirements imposed on the city may cost millions. (http://www.mailtribune.com/news/20161117/feds-rap-medford-over-ada-rules)
- Self-Inspections and Transition Planning; It’s the right thing to do.People want to go places, do things and have fun in their spare time. People want to work and contribute to society but when a person is disabled or a family lives with someone who is, things aren’t so easy. In fact, a child living with a disability in Oklahoma is almost 1.5 times more likely to live in poverty. An adult with a disability is much more likely to be unemployed or underemployed which creates a serious emotional and financial drains on the individual, the family, and the public entity.
Consider the facts. Nearly twenty percent of the United States’ population is disabled.The same ratio holds true in Oklahoma where more than 500,000 people live with a disability. Nearly forty thousand children and almost half of all citizens over the age of 65 are disabled and the numbers are steadily increasing as baby boomers mature.
Despite accidents and illnesses, medical treatments, improved physical therapy and remarkable devices have enhanced the expectations of disabled citizens. They are being encouraged to return to work and actively participate in recreation. Expectations for accessible accommodations are higher than ever. 26 years after the passage of the ADA people are looking to get back to work, travel and enjoy an active life.
Every public entity is subject to Title II of the Americans with Disabilities Act. All entities have a responsibility to actively manage compliance with the Act but public entities with more than 50 employees have increased administrative responsibilities. It is in everyone’s best interest to comply with the law.