The Americans with Disabilities Act Title II Technical Assistance Manual Covering State and Local Government Programs and Services Introduction This technical assistance manual addresses the requirements of title II of the Americans with Disabilities Act, which applies to the operations of State and local governments. It is one of a series of publications issued by Federal agencies under section 506 of the ADA to assist individuals and entities in understanding their rights and duties under the Act. This manual is part of a broader program of technical assistance conducted by the Department of Justice to promote voluntary compliance with the requirements not only of title II, but also of title III of the ADA, which applies to public accommodations, commercial facilities, and private entities offering certain examinations and courses. The purpose of this technical assistance manual is to present the ADA's requirements for State and local governments in a format that will be useful to the widest possible audience. The guidance provided in the Department's regulations and accompanying preambles has been carefully reorganized to provide a focused, systematic description of the ADA's requirements. The manual attempts to avoid an overly legalistic style without sacrificing completeness. In order to promote readability and understanding, the text makes liberal use of questions and answers and illustrations. The manual is divided into nine major subject matter headings with numerous numbered subheadings. Each numbered heading and subheading is listed in a quick reference table of contents at the beginning of the manual. Contents II-1.0000 COVERAGE II-1.1000 General. II-1.2000 Public entity. II-1.3000 Relationship to title III. II-1.4000 Relationship to other laws II-1.4100 Rehabilitation Act. II-1.4200 Other Federal and State laws. II-2.0000 QUALIFIED INDIVIDUALS WITH DISABILITIES II-2.1000 General. II-2.2000 Physical or mental impairments. II-2.3000 Drug addiction as an impairment. II-2.4000 Substantial limitation of a major life activity. II-2.5000 Record of a physical or mental impairment that substantially limited a major life activity. II-2.6000 "Regarded as." II-2.7000 Exclusions. II-2.8000 Qualified individual with a disability. II-3.0000 GENERAL REQUIREMENTS II-3.1000 General. II-3.2000 Denial of participation. II-3.3000 Equality in participation/benefits. II-3.4000 Separate benefit/integrated setting. II-3.4100 Separate programs. II-3.4200 Relationship to "program accessibility" requirement. II-3.4300 Right to participate in the regular program. II-3.4400 Modifications in the regular program. II-3.5000 Eligibility criteria II-3.5100 General. II-3.5200 Safety. II-3.5300 Unnecessary inquiries. II-3.5400 Surcharges. II-3.6000 Reasonable modifications II-3.6100 General. II-3.6200 Personal services and devices. II-3.7000 Contracting and licensing II-3.7100 Contracting. II-3.7200 Licensing. II-3.8000 Illegal use of drugs. II-3.9000 Discrimination on the basis of association. II-3.10000 Maintenance of accessible features. II-3.11000 Retaliation or coercion. II-3.12000 Smoking. II-4.0000 EMPLOYMENT II-4.1000 General. II-4.2000 Relationship among title II and other Federal laws that prohibit employment discrimination by public entities on the basis of disability. II-4.3000 Basic employment requirements. II-4.3100 Nondiscriminatory practices and policies. II-4.3200 Reasonable accommodation. II-4.3300 Nondiscrimination in selection criteria and the administration of tests. II-4.3400 Preemployment medical examinations and medical inquiries. II-5.0000 PROGRAM ACCESSIBILITY II-5.1000 General. II-5.2000 Methods for providing program accessibility. II-5.3000 Curb ramps. II-5.4000 Existing parking lots or garages. II-5.5000 Historic preservation programs. II-5.6000 Time periods for achieving program accessibility. II-6.0000 NEW CONSTRUCTION AND ALTERATIONS II-6.1000 General. II-6.2000 Choice of design standard: UFAS or ADAAG II-6.2100 General. II-6.3000 Major differences between ADAAG and UFAS. II-6.3100 General principles 1) Work areas 2) Equivalent facilitation 3) Exemption from application of standards in new construction 4) Exemption from application of standards in alterations 5) Alterations triggering additional requirements 6) Additions II-6.3200 Elements. 1) Van parking 2) Valet parking 3) Signs 4) Entrances 5) Areas of rescue assistance or places of refuge 6) Water fountains 7) Storage and shelves 8) Volume controls 9) Telecommunication Devices for the Deaf (TDD's) 10) Assembly areas 11) Automated teller machines (ATM's) 12) Bathrooms 13) Detectable warnings 14) Carpet and carpet tile. 15) Curb ramps 16) Elevator hoistway floor designations and car controls 17) Visual alarms 18) Elevators and platform lifts in new construction and alterations II-6.3300 Types of facilities 1) Historic buildings 2) Residential facilities/transient lodging 3) Restaurants 4) Medical or health care facilities 5) Mercantile 6) Jails and prisons II-6.4000 Leased buildings. II-6.5000 Alterations to historic properties. II-6.6000 Curb ramps. II-7.0000 COMMUNICATIONS II-7.1000 Equally effective communication. II-7.1100 Primary consideration. II-7.1200 Qualified interpreter. II-7.2000 Telephone communications. II-7.3000 Emergency telephone services II-7.3100 General. II-7.3200 911 lines. II-7.3300 Seven-digit lines. II-7.3400 Voice amplification. II-8.0000 ADMINISTRATIVE REQUIREMENTS II-8.1000 General. II-8.2000 Self-evaluation. II-8.3000 Transition plan. II-8.4000 Notice to the public. II-8.5000 Designation of responsible employee and development of grievance procedures. II-9.0000 INVESTIGATION OF COMPLAINTS AND ENFORCEMENT II-9.1000 General. II-9.2000 Complaints. Regulatory references: 28 CFR 35.102-35.104. II-1.1000 General. Title II of the ADA covers programs, activities, and services of public entities. It is divided into two subtitles. This manual focuses on subtitle A of title II, which is implemented by the Department of Justice's title II regulation. Subtitle B, covering public transportation, and the Department of Transportation's regulation implementing that subtitle, are not addressed in this manual. Subtitle A is intended to protect qualified individuals with disabilities from discrimination on the basis of disability in the services, programs, or activities of all State and local governments. It additionally extends the prohibition of discrimination on the basis of disability established by section 504 of the Rehabilitation Act of 1973, as amended, to all activities of State and local governments, including those that do not receive Federal financial assistance. By law, the Department of Justice's title II regulation adopts the general prohibitions of discrimination established under section 504, and incorporates specific prohibitions of discrimination from the ADA. Subtitle B is intended to clarify the requirements of section 504 for public transportation entities that receive Federal financial assistance. Also it extends coverage to all public entities that provide public transportation, whether or not they receive Federal financial assistance. It establishes detailed and complex standards for the operation of public transit systems, including commuter and intercity rail (AMTRAK). The Department of Transportation is responsible for the implementation of the second subtitle of Title II and issued a regulation implementing that subtitle. II-1.2000 Public entity. A public entity covered by title II is defined as -- 1) Any State or local government; 2) Any department, agency, special purpose district, or other instrumentality of a State or local government; or 3) Certain commuter authorities as well as AMTRAK. As defined, the term "public entity" does not include the Federal Government. Title II, therefore, does not apply to the Federal Government, which is covered by sections 501 and 504 of the Rehabilitation Act of 1973. Title II is intended to apply to all programs, activities, and services provided or operated by State and local governments. Currently, section 504 of the Rehabilitation Act only applies to programs or activities receiving Federal financial assistance. Because many State and local government operations, such as courts, licensing, and legislative facilities and proceedings do not receive Federal funds, they are beyond the reach of section 504. In some cases it is difficult to determine whether a particular entity that is providing a public service, such as a library, museum, or volunteer fire department, is in fact a public entity. Where an entity appears to have both public and private features, it is necessary to examine the relationship between the entity and the governmental unit to determine whether the entity is public or private. Factors to be considered in this determination include -- 1) Whether the entity is operated with public funds; 2) Whether the entity's employees are considered government employees; 3) Whether the entity receives significant assistance from the government by provision of property or equipment; and 4) Whether the entity is governed by an independent board selected by members of a private organization or a board elected by the voters or appointed by elected officials. II-1.3000 Relationship to title III. Public entities are not subject to title III of the ADA, which covers only private entities. Conversely, private entities are not subject to title II. In many situations, however, public entities have a close relationship to private entities that are covered by title III, with the result that certain activities may be at least indirectly affected by both titles. ILLUSTRATION 1: A privately owned restaurant in a State park operates for the convenience of park users under a concession agreement with a State department of parks. As a public accommodation, the restaurant is subject to title III and must meet those obligations. The State department of parks, a public entity, is subject to title II. The parks department is obligated to ensure by contract that the restaurant is operated in a manner that enables the parks department to meet its title II obligations, even though the restaurant is not directly subject to title II. ILLUSTRATION 2: A city owns a downtown office building occupied by its department of human resources. The building's first floor, however, is leased to a restaurant, a newsstand, and a travel agency. The city, as a public entity and landlord of the office building, is subject to title II. As a public entity, it is not subject to title III, even though its tenants are public accommodations that are covered by title III. ILLUSTRATION 3: A city engages in a joint venture with a private corporation to build a new professional sports stadium. Where public and private entities act jointly, the public entity must ensure that the relevant requirements of title II are met; and the private entity must ensure compliance with title III. Consequently, the new stadium would have to be built in compliance with the accessibility guidelines of both titles II and III. In cases where the standards differ, the stadium would have to meet the standard that provides the highest degree of access to individuals with disabilities. ILLUSTRATION 4: A private, nonprofit corporation operates a number of group homes under contract with a State agency for the benefit of individuals with mental disabilities. These particular homes provide a significant enough level of social services to be considered places of public accommodation under title III. The State agency must ensure that its contracts are carried out in accordance with title II, and the private entity must ensure that the homes comply with title III. II-1.4000 Relationship to other laws II-1.4100 Rehabilitation Act. Title II provides protections to individuals with disabilities that are at least equal to those provided by the nondiscrimination provisions of title V of the Rehabilitation Act. Title V includes such provisions as section 501, which prohibits discrimination on the basis of disability in Federal employment; section 503, which addresses the employment practices of Federal contractors; and section 504, which covers all programs receiving Federal financial assistance and all the operations of Federal Executive agencies. Title II may not be interpreted to provide a lesser degree of protection to individuals with disabilities than is provided under these laws. II-1.4200 Other Federal and State laws. Title II does not disturb other Federal laws or any State laws that provide protection for individuals with disabilities at a level greater or equal to that provided by the ADA. It does, however, prevail over any conflicting State laws. II-2.0000 QUALIFIED INDIVIDUALS WITH DISABILITIES Regulatory references: 28 CFR 35.104. II-2.1000 General. Title II of the ADA prohibits discrimination against any "qualified individual with a disability." Whether a particular individual is protected by title II requires a careful analysis first, of whether an individual is an "individual with a disability," and then whether that individual is "qualified." People commonly refer to disabilities or disabling conditions in a broad sense. For example, poverty or lack of education may impose real limitations on an individual's opportunities. Likewise, being only five feet in height may prove to be an insurmountable barrier to an individual whose ambition is to play professional basketball. Although one might loosely characterize these conditions as "disabilities" in relation to the aspirations of the particular individual, the disabilities reached by title II are limited to those that meet the ADA's legal definition -- those that place substantial limitations on an individual's major life activities. Title II protects three categories of individuals with disabilities: 1) Individuals who have a physical or mental impairment that substantially limits one or more major life activities; 2) Individuals who have a record of a physical or mental impairment that substantially limited one or more of the individual's major life activities; and 3) Individuals who are regarded as having such an impairment, whether they have the impairment or not. II-2.2000 Physical or mental impairments. The first category of persons covered by the definition of an individual with a disability is restricted to those with "physical or mental impairments." Physical impairments include -- 1) Physiological disorders or conditions; 2) Cosmetic disfigurement; or 3) Anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs (which would include speech organs that are not respiratory such as vocal cords, soft palate, tongue, etc.); respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine. Specific examples of physical impairments include orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, HIV disease (symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism. Mental impairments include mental or psychological disorders, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Simple physical characteristics such as the color of one's eyes, hair, or skin; baldness; left-handedness; or age do not constitute physical impairments. Similarly, disadvantages attributable to environmental, cultural, or economic factors are not the type of impairments covered by title II. Moreover, the definition does not include common personality traits such as poor judgment or a quick temper, where these are not symptoms of a mental or psychological disorder. Does title II prohibit discrimination against individuals based on their sexual orientation? No. The phrase "physical or mental impairment" does not include homosexuality or bisexuality. II-2.3000 Drug addiction as an impairment. Drug addiction is an impairment under the ADA. A public entity, however, may base a decision to withhold services or benefits in most cases on the fact that an addict is engaged in the current and illegal use of drugs. What is "illegal use of drugs"? Illegal use of drugs means the use of one or more drugs, the possession or distribution of which is unlawful under the Controlled Substances Act. It does not include use of controlled substances pursuant to a valid prescription, or other uses that are authorized by the Controlled Substances Act or other Federal law. Alcohol is not a "controlled substance," but alcoholism is a disability. What is "current use"? "Current use" is the illegal use of controlled substances that occurred recently enough to justify a reasonable belief that a person's drug use is current or that continuing use is a real and ongoing problem. A public entity should review carefully all the facts surrounding its belief that an individual is currently taking illegal drugs to ensure that its belief is a reasonable one. Does title II protect drug addicts who no longer take controlled substances? Yes. Title II prohibits discrimination against drug addicts based solely on the fact that they previously illegally used controlled substances. Protected individuals include persons who have successfully completed a supervised drug rehabilitation program or have otherwise been rehabilitated successfully and who are not engaging in current illegal use of drugs. Additionally, discrimination is prohibited against an individual who is currently participating in a supervised rehabilitation program and is not engaging in current illegal use of drugs. Finally, a person who is erroneously regarded as engaging in current illegal use of drugs is protected. Is drug testing permitted under the ADA? Yes. Public entities may utilize reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging in current illegal use of drugs. II-2.4000 Substantial limitation of a major life activity. To constitute a "disability," a condition must substantially limit a major life activity. Major life activities include such activities as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. When does an impairment "substantially limit" a major life activity? There is no absolute standard for determining when an impairment is a substantial limitation. Some impairments obviously or by their nature substantially limit the ability of an individual to engage in a major life activity. ILLUSTRATION 1: A person who is deaf is substantially limited in the major life activity of hearing. A person with a minor hearing impairment, on the other hand, may not be substantially limited. ILLUSTRATION 2: A person with traumatic brain injury may be substantially limited in the major life activities of caring for one's self, learning, and working because of memory deficit, confusion, contextual difficulties, and inability to reason appropriately. An impairment substantially interferes with the accomplishment of a major life activity when the individual's important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people. ILLUSTRATION 1: A person with a minor vision impairment, such as 20/40 vision, does not have a substantial impairment of the major life activity of seeing. ILLUSTRATION 2: A person who can walk for 10 miles continuously is not substantially limited in walking merely because, on the eleventh mile, he or she begins to experience pain, because most people would not be able to walk eleven miles without experiencing some discomfort. Are "temporary" mental or physical impairments covered by title II? Yes, if the impairment substantially limits a major life activity. The issue of whether a temporary impairment is significant enough to be a disability must be resolved on a case-by-case basis, taking into consideration both the duration (or expected duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual. ILLUSTRATION: During a house fire, M received burns affecting his hands and arms. While it is expected that, with treatment, M will eventually recover full use of his hands, in the meantime he requires assistance in performing basic tasks required to care for himself such as eating and dressing. Because M's burns are expected to substantially limit a major life activity (caring for one's self) for a significant period of time, M would be considered to have a disability covered by title II. If a person's impairment is greatly lessened or eliminated through the use of aids or devices, would the person still be considered an individual with a disability? Whether a person has a disability is assessed without regard to the availability of mitigating measures, such as reasonable modifications, auxiliary aids and services, services and devices of a personal nature, or medication. For example, a person with severe hearing loss is substantially limited in the major life activity of hearing, even though the loss may be improved through the use of a hearing aid. Likewise, persons with impairments, such as epilepsy or diabetes, that, if untreated, would substantially limit a major life activity, are still individuals with disabilities under the ADA, even if the debilitating consequences of the impairment are controlled by medication. II-2.5000 Record of a physical or mental impairment that substantially limited a major life activity. The ADA protects not only those individuals with disabilities who actually have a physical or mental impairment that substantially limits a major life activity, but also those with a record of such an impairment. This protected group includes -- 1) A person who has a history of an impairment that substantially limited a major life activity but who has recovered from the impairment. Examples of individuals who have a history of an impairment are persons who have histories of mental or emotional illness, drug addiction, alcoholism, heart disease, or cancer. 2) Persons who have been misclassified as having an impairment. Examples include persons who have been erroneously diagnosed as mentally retarded or mentally ill. II-2.6000 "Regarded as." The ADA also protects certain persons who are regarded by a public entity as having a physical or mental impairment that substantially limits a major life activity, whether or not that person actually has an impairment. Three typical situations are covered by this category: 1) An individual who has a physical or mental impairment that does not substantially limit major life activities, but who is treated as if the impairment does substantially limit a major life activity; ILLUSTRATION: A, an individual with mild diabetes controlled by medication, is barred by the staff of a county-sponsored summer camp from participation in certain sports because of her diabetes. Even though A does not actually have an impairment that substantially limits a major life activity, she is protected under the ADA because she is treated as though she does. 2) An individual who has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others towards the impairment; ILLUSTRATION: B, a three-year old child born with a prominent facial disfigurement, has been refused admittance to a county-run day care program on the grounds that her presence in the program might upset the other children. B is an individual with a physical impairment that substantially limits her major life activities only as the result of the attitudes of others toward her impairment. 3) An individual who has no impairments but who is treated by a public entity as having an impairment that substantially limits a major life activity. ILLUSTRATION: C is exclud