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Trying to comply with the ADA.

Approximately one out of six Americans has some type of physical or mental disability that substantially limits one or more major life activities. From AIDS to schizophrenia to Down syndrome to vision and hearing loss, these impairments, potentially, can touch anyone. No matter from what ethnic background or social class, no one is immune from the stigma, prejudice and isolation often experienced by people with disabilities.

As the population grows older, the current estimate of 43 million people with some sort of impairment is expected to swell. They will face discrimination from blatant and intentional isolation because of architectural, transportation and communication barriers, and from more subtle restrictions in the job market because of exclusionary qualifications and criteria.

Intended to head this off is the Americans with Disabilities Act, passed by nearly unanimous congressional vote and signed by President Bush on July 26, 1990. Some experts say the ADA is the most progressive and aggressive piece of legislation passed since the Civil Rights Act in 1964. Others believe it is the most costly piece of legislation for government and businesses ever to hit this country.

The act is a sweeping piece of civil rights legislation, intended to provide a "clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities" in all facets of society. The ADA, which applies to nearly everyone, mandates access to the neighborhood ice cream shop, to employment opportunities at Boeing, to public transportation to Neiman Marcus, and to all aspects of the legislative process. Title I of the act intends to eliminate job discrimination and applies to state and local governments and state legislatures as employers.

What does all this mean for state legislatures? As employers they must comply with the ADA. A number of state legislatures, including Arkansas, Arizona, Colorado, Delaware, Illinois, Maryland, Michigan, Missouri, Montana, Nebraska, New Mexico, New York, South Dakota, Texas, Utah, Vermont, Wisconsin and Wyoming, have already moved to appropriate funds to carry out ADA mandates, to review current statutes for conflicts with the act, and to clarify specific requirements and obligations.

In order to live up to the law, employers, including state agencies, are scrambling to eliminate discriminatory and exclusionary requirements from job descriptions and to clearly define the "essential functions" of each job. For example, a job description may stipulate that an applicant "must possess" a valid driver's license although no driving may be involved with the job. This requirement automatically eliminates people who are blind or have epilepsy. Requiring a high school diploma seems a safe, nondiscriminatory criterion for a job applicant, yet it may discriminate against people with a learning disability. Requiring a high school diploma for a shipping clerk position could exclude people who may possess the skills necessary to do the job: Nearly 40 percent of all adults with disabilities have not completed high school. Questions like "Do you have any physical condition which will limit your ability to perform this job?" are illegal under the new ADA. A major objective of the ADA is to retool society's thinking and to focus on abilities rather than disabilities. Under the ADA it is the potential employee's responsibility to inform the employer of necessary accommodations.

Access to the Legislature

Title II stipulates that "no individual shall be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity because of a disability." This could require modifications to ensure access to state buildings, programs and services. At first glance, this appears to be a tall order. However, many state buildings and local programs have been accessible for a number of years. Under section 504 of the Rehabilitation Act of 1973 any state program or facility supported by federal funds is required to be accessible to the handicapped.

When complying with ADA requirements, the keys are flexibility, a good faith effort and preventing exclusion, says the Department of Justice. Legislators with inaccessible district offices, for example, need to be flexible and "modify practices" for their constituents with disabilities. That could mean meeting a person with special needs at an accessible restaurant or other facility.

What exactly does access to the legislative process mean? It means providing appropriate auxiliary aids and services to ensure effective communication. This may include providing sign language interpreters for legislative hearings or television monitors with captioning, it may mean bills in braille, or bills recorded on audio tape, it may mean bills that are printed in 14-point type. Access to the legislative process requires entry to the Capitol and to every aspect of the legislative process that is now open to the public.

The legislature will not be required to provide sign language interpreters every day all day for every legislative hearing, according to the Department of Justice. But if given reasonable notice (the Department of Justice informed the Utah Legislature that depending on circumstances, 72 hours was reasonable notice), it is the legislature's responsibility to provide an interpreter at the state's expense if a person with a hearing impairment requests one. The act also stipulates that an interpreter must be a "qualified interpreter," but fails to spell out specifically what constitutes qualified. Is a qualified interpreter state certified? Or will a particular level of skill suffice? Who determines what that level of skill will be? Will formal training be necessary or can an individual who has grown up communicating in sign language meet the "qualified interpreter" criteria? Unless a state already has a mechanism to determine what a qualified interpreter is, legislation may be necessary.

Assistance Is Available

Where can a state legislature get help? In addition to the various disability and advocacy groups located throughout a state, "a critical component of ADA implementation is communication with people with disabilities," says Denise Rozell, associate director of the National Association of Developmental Disabilities Councils. "People with disabilities want to make this work for everyone." The Department of Justice, Equal Employment Opportunity Commission, Architectural and Transportation Barriers Compliance Board, Department of Transportation and other federal agencies are providing ADA technical assistance programs. They offfer recorded telephone messages, audiovisual materials, pamphlets, manuals, electronic bulletin boards, checklists and training. The law requires this technical assistance for people who are protected by the ADA and those who need to comply with it.

A technical assistance manual on Title II is available from Department of Justice offices and 10 ADA Technical Assistance Centers. The centers are funded by the National Institute of Disability and Rehabilitation Research and are set up by region to provide information to employers, agencies and people with disabilities. The manual highlights key components to consider when developing the criteria for a "qualified interpreter." Attention needs to be given to the different sign languages in use. As is the case with a foreign language, an interpreter needs to be able to communicate with both the deaf person and the hearing person colloquially as well as formally.

A training video on the Title II and Title III regulations will soon to be available from the American Speech-Language-Hearing Association. Jo Williams, director of the project, urges legislators to have Telecommunication Device for the Deaf (TDD) equipment available in state offices so constituents with hearing impairments can reach them by telephone.

Not Much Help for Legislatures

So far, specific questions asked by legislatures aren't being answered by the technical assistance available. The Utah Legislature, for instance, wanted to know if every piece of legislation needs to be available in an alternative format. The answer is no, but that legislation needs to be available in alternative formats when they are requested. Utah now knows the answer, officials say, but it took a super sleuth to find it.

Federal sources aren't up to speed on answering these kinds of questions that are particular to legislatures. Most federal funding for technical help on Title II of the act is going to organizations such as the National Center for Law and the Deaf and the American Speech, Language and Hearing Association. Their assistance is usually superficial, merely describing the act and explaining only the rules and regulations. Legislatures need more specific answers.

When a legislature wrestles with the state's budget and is rationing appropriations for various programs and staff, is it required, for instance, to

fund a fulltime reader for a county prosecutor who is blind? The prosecutor needs someone to interpret and translate every written court document in addition to "reading" facial expressions of witnesses and jury members. Is this considered "reasonable accommodation" or does it cross the boundary into "undue hardship"? According to Janet Blizard of the Department of Justice, this example "usually is not an undue hardship, depending on circumstances." She says the "ADA is intended to be real flexible" and advises states to consider the "specific situation" and the "resources available" when looking at the reasonable accommodations criteria.

The question remains. In this time of extremely tight budget constraints, how many employees that require that level of accommodation can a state support?

To be in compliance and to be able to afford it, states need to be creative and resourceful. For example, reviewing the prosecutor's position to evaluate whether that level of assistance is absolutely necessary is one option. Analyzing available resources within a program may present another solution. There may already be a full-time employee willing and able to provide the necessary assistance. Allan Bergman of United Cerebral Palsy Associations believes these kinds of employment issues need to be evaluated and considered on a case-by-case basis. The ADA does not provide a "cookbook" offering recipes for success.

Legislatures Can Be Sued

If a legislature does not comply with the ADA, it can be sued. Private parties may bring lawsuits against the state in district court or file a formal complaint with an appropriate federal agency to enforce their rights. In addition to the Department of Justice, seven federal agencies have been designated to handle complaints filed under Title II. A complaint may also be filed with any federal agency that provides financial assistance to the alleged violator, and the fine for a violation can be stiff. Under Title II of the ADA, the remedy allows for corrective action and compensatory damages only.

Jim DeJong, ADA project coordinator for the Technical Assistance Center in Region VII, which includes Missouri, Nebraska, Kansas and Iowa, says legislatures can minimize their chances of being sued. Being aware of the whole picture when you implement the act will help minimize costly mistakes and reduce risk of litigation, he says. Public meetings, hearings or social functions sponsored by the legislature must be held at accessible locations. Current policies, like hiring practices, need to be reviewed. DeJong also suggests that legislatures exhibit a "valiant effort to come into compliance" and to "create good faith efforts" through appropriations, transition plans and self evaluation, all required of states by ADA.

"Document every dollar your state spends on ADA compliance," advises DeJong, it could be your best insurance policy in case you find yourself entangled in litigation.

Deciding Who's in Charge

Jim DeJong advises states to choose their ADA compliance coordinator with care. It should be a person with some recognized authority and personal clout, he says. Some of the largest stumbling blocks to implementing the law are caused because no one's in charge, he said.

In Nebraska, for example, the fire marshal is responsible for enforcing the state's building code. But when dealing with ADA accessibility, the fire marshal is not responsible for reviewing building plans to make sure a building is in compliance. Nebraska is still struggling with this issue of jurisdiction and authority. Currently no one is held accountable for enforcement or noncompliance of the ADA.

In Colorado, the governor has developed a "cabinet council" to oversee ADA compliance and consistency. Serving are executive directors from several state agencies, members of the executive branch and individuals from the disability community. So far, the council's responsibilities, jurisdiction and scope of authority have yet to be determined.

Initial Costs Will Be High

ADA implementation will not be cheap. The Budget on Human Services Committee in North Dakota has attached an estimated $4.2 million price tag to the architectural barriers mandate of the ADA. During the 1992 session, the Missouri legislature appropriated $500,000 to implement the ADA and is looking at a request for $2.5 million in 1993. Currently no one has a handle on the cost of actual implementation. Under tight fiscal constraints, appropriations and budget committees will need to be sensitive to their fiscal responsibilities and obligations regarding the ADA. Legislatures are wondering how much is enough. No telling. Lawmakers can safely guess that initial costs will be high. However, once capital investments are made, additional expenses incurred for the ADA should be nominal.

Here's What States Are Doing

States are taking several different approaches to dealing with the ADA mandates. Responses range from apathy to progressive plans and activities.

Arizona: Passed an emergency measure last session to make Arizona statutes conform to the federal ADA.

Florida: Installed Telecommunication Device for the Deaf (TDD) equipment in the offices of the Senate secretary, House sergeant and Public Council.

Iowa: Installed a computer system for tracking legislation in an accessible location for the public.

Louisiana: Conducted a meeting on ADA requirements for elected officials, state agency department heads, legislative leadership and the judicial administrator.

Maine: The executive director of the Legislative Council, clerk of the House and secretary of the Senate discussed with other state agencies options for providing legislation in alternative formats.

Minnesota: Passed a Human Rights Law more stringent than the ADA, before ADA was passed.

Montana: Contracted with the Montana Independent Living Project to survey the accessibility of the State Capitol.

North Dakota: Named the legislature's Budget Committee on Human Services as an oversight group responsible for delivering recommendations to the legislature and assessing the fiscal impact of the act.

Texas: Restructured the Governor's Committee on People with Disabilities to provide guidelines and monitor ADA compliance.

Utah: The Legislature joined forces with the Center for Deaf to write a bill that will define "qualified interpreter."

West Virginia: Created the legislative Handicap Access Subcommittee to evaluate the accessibility of the Capitol and issue recommendations to the Legislature.

Wyoming: Contracted with the Department of Vocational Rehabilitation and the Department of Education for sign language interpreters for the Legislature.

Key Points of the Americans with Disabilities Act

The Americans with Disabilities Act is intended to bring people with mental and physical impairments into the economic and social mainstream of American life. It prohibits discrimination in the areas of employment, in state and local government services, in public accommodations and in telecommunications.

A person is considered to have a disability if he or she has a physical or mental impairment that substantially limits one or more of the major life activities (basic activities that the average person in the general population can perform with little or no difficulty).

Title I (Employment)

It is unlawful to discriminate in employment practices against an individual with a disability who is qualified to "perform the essential functions of the job," with or without reasonable accommodation. It means that:

* An individual must be able to perform fundamental job duties unaided or with reasonable accommodation in order to be considered qualified for the job.

* The employer must provide any modification or adjustment in the work environment or in the way things are customarily done that would enable an individual with a disability to do the job. A reasonable accommodation need only be made to the physical or mental limitations of a qualified individual with a disability that is known to the employer.

* The employer will not be required to make an accommodation or provision that is significantly difficult or is prohibitively expensive.

Title II (Public Services)

Public entities may not exclude a qualified individual with a disability (who meets the essential eligibility requirements for services) from participating in or receiving benefits of their services, programs or activities. Under Title II:

* Public organizations are not required to take any action that results in an alteration in the nature of a service, program, or activity or causes undue financial and administrative burdens.

* All public entities must evaluate their services, policies and practices that do not or may not meet the requirements of Title II.

* Public organizations must comply with Title I if subject to its jurisdiction. If not, they must comply with the employment requirements of section 504 of the Rehabilitation Act of 1973.

* A public entity that employs 50 or more people must appoint at least one employee to coordinate compliance, including investigation and resolution of complaints.

Title III (Public Accommodations and Services Operated by Private


Private operators of public places must not discriminate against people with disabilities. The disabled are entitled to full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations of any public place.

Title IV (Telecommunications)

Telecommunications services such as telephone services must be offered to hearing impaired and speech impaired individuals that are functionally equivalent to those available to hearing and speaking individuals.
COPYRIGHT 1993 National Conference of State Legislatures
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1993, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

Article Details
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Title Annotation:includes related articles; Americans with Disabilities Act of 1990
Author:Bauer, Louise
Publication:State Legislatures
Date:Jan 1, 1993
Previous Article:Passing the buck.
Next Article:The long and winding road to WIPP.

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