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Learning to comply with the American with Disabilities Act.

The Americans with Disabilities Act (ADA), P.L. 101-336, 42 U.S.C. Sec. 12101 et seq. mandates equality of opportunity (nondiscrimination) for qualified persons with physical or mental disabilities in all programs, services, benefits, and activities of cities (and other state and local governments). The ADA is now in effect. Title II of ADA, and the implementing regulations of the United States Department of Justice, 28 CFR part 35, became effective on January 26, 1992.

Title II requires that city officials achieve nondiscrimination through the concept of program accessibility. This concept embraces not only the external activities of cities, i.e., the provision of services, such as social, health, park, etc., but also the internal activities, including employment.

For local governments, the requirements for employment nondiscrimination are two-tiered. All municipalities had to comply with the Title II (DOJ) requirements that directly reference the Section 504 employment provisions as of January 26, 1992. However, for cities with 25 or more employees, the city as an employer becomes subject to the ADA Title I employment requirements as of July 26, 1992. For cities with 15 or more employees, July 26, 1993 is the effective date when these jurisdictions become subject to the Title I regulations promulgated by the Equal Employment Opportunity Commission. For those cities with fewer than 15 employees, they remain subject to the Section 504 employment provisions as referenced in the Title II regulations issued by U.S. Department of Justice.

Federal Funding and Financial Resources

It is critically important to note that unlike previous federal mandates, such as in Section 504 of the Rehabilitation Act, the ADA prohibits discrimination against qualified disabled individuals, whether or not the city receives any federal funding. Hence, the ADA applies to every aspect of local government operations in all jurisdictions.

A key ADA question for cities is how will the federal government react to their financial situations. Many cities (as well as state and county governments) are having hard times, i.e."budget shortfalls." There are no federal funds specifically earmarked to assist city governments comply with the ADA; however, the key concepts of "program accessibility", "reasonable accommodation" and "maximum extent possible" all recognize that cost may be a factor in providing equal access and opportunity.

During these times of fiscal constraint, the concern, for example, about spending money on a "reasonable accommodation" for a disabled employee may seem valid. However, most employees with disabilities do not require any accommodation and that studies show most accommodations which do cost money, cost less than $500. Bear in mind that the cost of an accommodation and the employer's financial resources are among the factors in determining the reasonableness of an accommodation.

Program and Physical Accessibility

The most crucial concept for cities is that of program accessibility which also recognizes the need to avoid undue financial burdens in achieving nondiscrimination. This concept permits city governments to make all of its existing programs, not all existing structures, accessible to persons with disabilities.

Achieving program accessibility may mean relocating services and activities from an inaccessible site to an accessible structure, redesigning equipment, providing auxiliary aides to help disabled beneficiaries of city programs, as well as altering an existing structure. For example, if you have two facilities for health care services, you could make one of the sites that offered all city health services accessible, not both.

Since the cost of accessibility is minimal in new structures, new buildings (permitted after January, 1992) are required to be fully accessible and usable. Alterations to existing structures which affect or could affect the usability of the structure are also required to be accessible to the maximum extent feasible. There is a similar rule for historic properties.

The concept of "maximum extent feasible" is a recognition that total structural access may not be possible, in which case alternative methods of ensuring opportunities to participate in the program are to be used. But while it may be structurally impractical or impossible to put in an elevator to assist a mobility impaired person, it may still be feasible to install raised lettering for a vision impaired person or signage to help a hearing impaired person.

The ADA rules also recognize the financial straits of cities by not requiring that all structural changes be completed immediately. While programs, activities, and services needed to be available on a nondiscriminatory basis as of January 26, 1992, the structural changes are not required to be completed until January 26, 1995, though they should be done as expeditiously as possible.

Action Steps Toward Compliance

Although the U.S. Department of Justice regulations only require those cities which employ 50 or more persons to designate ADA coordinates, it is advisable for all communities, regardless of size, to designate a knowledgable spokesperson who can guide your ADA compliance efforts.

If your jurisdiction received federal funds in the past, it may be prudent to review existing files related to Section 504 compliance. The concepts of program accessibility and reasonable accommodation first saw the light of legal day in the federal H.E.W. regulations implementing the Rehabilitation Act in 1977. Local government experiences complying with the nondiscrimination mandates under programs such as the federal Office of Revenue Sharing can be drawn upon for meeting ADA mandates.

Indeed, the self-evaluation is only required of programs and activities not already evaluated under the provisions of Section 504 of the Rehabilitation Act.

Although not required in cities with fewer than 50 employees, the transition plan provides the city government with a plan for removing structural barriers in city-owned and leased buildings. This document is a logical extension of the self-evaluation process and therefor, it is recommended that all jurisdictions prepare a transition plan.

All cities should create an ADA advisory committee, chaired by the ADA coordinator. The committee members should have an expertise in areas such as service delivery, facilities management and finance, so that compliance with the program accessibility requirements can be evaluated and carried out on an institutional basis with comprehensive policies and ongoing practices.

Once again although only those cities with more than 50 employees are required to develop formal complaint/grievance procedures, but it is strongly recommended that all cities develop a planned approach to ADA compliance.

In summary, it is recommended that all cities take the following steps towards compliance as quickly as possible:

[subsection] Designate an ADA coordinator;

[subsection] Create an ADA Advisory Committee, including persons with disabilities;

[subsection] Provide a public notice of nondiscrimination;

[subsection] Conduct a self-evaluation process;

[subsection] Prepare a transition plan, if structural changes are needed; and

[subsection] Develop a formal grievance/complaint process;

This approach should ensure that you community builds on previous and current experiences (or in lay terms so that "the right hand knows what the left is doing"--something often unknown to federal bureaucrats). These suggested action steps offer a comprehensive approach to achieving compliance with the ADA.

Charles D. Goldman is a Washington, D.C. attorney and trainer specializing in solving problems affecting persons with disabilities. He was worked with public and private organization and agencies, as well as individuals ...
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Title Annotation:Legal Issues: Complying with the ADA
Author:Goldman, Charles D.
Publication:Nation's Cities Weekly
Date:Apr 27, 1992
Previous Article:Our nation needs health care for 'hardworking Americans.'
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