County of Marin
Disability Access Program
Accessibility Guidance Bulletin #1a
ADA TITLE II – ACCESS TO GOVERNMENT PROGRAMS AND SERVICES
This Guidance Bulletin tells you what the Americans with Disabilities Act is and how Title II of the Act addresses government services. It also explains who is covered by the Act and what is required of government entities to ensure non-discrimination based on disability in their programs, services, activities and facilities.
WHAT IS “THE ADA”?
The Americans with Disabilities Act of 1990 (ADA), as amended in 2010, is a Federal law that provides civil rights protections to individuals with disabilities similar to those provided to individuals on the basis of race, color, sex, national origin, age, and religion. The ADA guarantees equal opportunity for individuals with disabilities in public accommodations (such as stores, restaurants, and hotels), employment, state and local government services, and transportation.
WHAT IS TITLE II?
The ADA has five sections, or “titles”, each addressing different areas of the law. Title II of the ADA addresses state and local governments, such as the County of Marin. Title II protects qualified individuals with disabilities from discrimination on the basis of disability when accessing and participating in County services, programs, or activities.
WHO ARE INDIVIDUALS WITH DISABILITIES?
The ADA, as amended, protects three categories of individuals from discrimination based on their disability:
- Individuals who have a physical or mental impairment that limits one or more major life activities – including such conditions as blindness, deafness, cerebral palsy, cancer, heart disease; mental retardation, brain injury, emotional or mental illness, and specific learning disabilities.
- Individuals who have a record of a physical or mental impairment that substantially limited one or more of the individual’s major life activities, including people who have recovered from mental or emotional illness, drug addiction, heart disease, or cancer.
- Individuals who are regarded as having such a disability, regardless of whether they have the disability. Common examples are someone who is obese or someone who is scarred due to injury, where there is no functional impairment, but people may regard the person as having a disability.
- It should be noted that the ADA also protects people from discrimination based on their association with someone with a disability.
WHO ARE “QUALIFIED” INDIVIDUALS WITH DISABILITIES?
To be qualified, the individual must meet the essential eligibility requirements for receipt of services or participation in County programs, services or activities, with or without:
- Reasonable modifications to a public entity’s rules, policies, or practices;
- Removal of architectural, communication, or transportation barriers; or
- Provision of auxiliary aids and services.
Health and safety factors can be taken into account in determining who is qualified. An individual who poses a “direct threat” to the health or safety of one’s self or others is not qualified. A direct threat is a significant risk of substantial harm to the health or safety of one’s self or others that cannot be eliminated or reduced to an acceptable level by accommodations or modifications to the program. This threat must be real and may not be based on generalizations or stereotypes about the effects of a particular disability. Before excluding an individual with a disability based on a direct threat, consultation with the Disability Access Manager and/or County Counsel, as well as the Department Head, is strongly recommended. It should be noted that this exception is often more narrowly defined than one might expect.
WHAT ARE THE REQUIREMENTS OF TITLE II?
Equality in Participation and Benefits. Persons with disabilities must have an equally effective opportunity to participate in or benefit from County programs, services, and activities. (See the “Equally Effective Communication” section below) Examples:
- A deaf or hard of hearing individual does not experience equal opportunity to benefit from attending a public meeting unless s/he has access to what is said through an interpreter or by being provided with an assistive listening device or real-time captioning.
- A wheelchair user will not have an equal opportunity to participate in a program if applications must be filed on the second floor office of a building without an elevator.
- Use of printed information alone is not equally effective for those with low vision who cannot read regular written material.
The County must reasonably modify its policies, practices, or procedures to ensure access and equal opportunity to individuals with disabilities.
- A County zoning ordinance requires a set-back of 12 feet from the curb in the central business district. In order to install a ramp to the front entrance of a pharmacy, the owner must encroach on the set-back by three feet. Granting a variance in the zoning requirement may be a reasonable modification of county policy.
- A county general relief program provides emergency food, shelter, and cash grants to individuals who can demonstrate their eligibility. The application process, however, is extremely lengthy and complex. When many individuals with mental disabilities apply for benefits, they are unable to complete the application process successfully. As a result, they are effectively denied benefits to which they are otherwise entitled. In this case, the county has an obligation to make reasonable modifications to its application process to ensure that otherwise eligible individuals are not denied needed benefits. Modifications to the relief program might include simplifying the application process or providing applicants who have mental disabilities with individualized assistance to complete the process.
- A person is scheduled for a morning appointment at the social services office. However, because of the person’s disability, or the medication that she is on to manage her disability, she is unable to make a morning appointment. The Department of Health and Human Services would have an obligation to provide her with an appointment that she would be able to attend.
- Other examples include allowing a person with a mobility impairment to sit down while “waiting in line,” or simply being more patient with a person who takes longer to express himself or be understood, because of a disability.
Equally Effective Communication
The County of Marin must ensure that its communications with people with disabilities are as effective as its communications with others. The County is required to provide appropriate auxiliary aids and services where necessary to ensure effective communication. Primary consideration must be given to the choice of auxiliary aid requested by the disabled person. Whatever accommodation is requested, the County must seek to provide it unless it is determined it has been proven to result in either a fundamental alteration in the program, or result in an undue financial or administrative burden. Examples of auxiliary aids and services include:
- Deaf or hard of hearing: qualified interpreters, note takers, real-time captioning, written materials, assistive listening systems, open or closed captioning, TTYs, and exchange of written notes (if the communication is not complex).
- Blind or low vision: qualified readers; audiotape, Braille, or large print materials, audio-descriptions of PowerPoint or video presentations; and assistance in locating items.
- Speech disability: TTYs, computer terminals (take turns typing back and forth if the communication is not complex).
Individuals with disabilities cannot be excluded from regular programs or required to accept accommodations. The County may offer separate or special programs when necessary to provide people with disabilities an equal opportunity to benefit from the programs. Examples:
- A recreation department sponsors a separate basketball team for wheelchair users.
- An art exhibit offers a tour where individuals who are blind are allowed to touch and handle specific objects on a limited basis (but cannot exclude a person who is blind from the standard tour).
Eligibility Criteria and Medical Inquiries
The County’s eligibility criteria for participation in its programs, services or activities must not screen out or tend to screen out people with disabilities, except in rare instances when such requirements are necessary. A program cannot request medical information unless it can demonstrate that each piece of information requested is needed to ensure safe participation in the program.
The County may impose legitimate safety requirements necessary for the safe operation of its services, programs, and activities. Safety requirements must be based on real risks, not on speculation, stereotypes, or generalizations about people with disabilities.
Although providing accommodations may result in some additional cost, the County may not place a surcharge only on particular individuals with disabilities to cover expenses. For example, there can be no extra program charge to a deaf person for interpreter services, or to groups of people with disabilities, but fees may be increased for all participants to cover the cost of those accommodations.
Personal Services and Devices
The County is not required to provide people with disabilities with personal or individually prescribed devices (wheelchairs, hearing aids or communication devices) or to provide services of a personal nature (such as assistance in eating, toileting or dressing) unless providing such services are part of the services offered by the program. This does not preclude the County from providing appropriate auxiliary aids and services to ensure accessibility.
Maintenance of Accessible Features
The County must ensure that equipment and accessibility features of facilities are in good working order and accessible to individuals with disabilities. Isolated or temporary interruptions in access due to maintenance and repair of accessible features are acceptable.
WHAT ARE THE REQUIREMENTS FOR FACILITY ACCESS?
The County of Marin must ensure that all of its programs, services and activities are accessible to individuals with disabilities. One key aspect of that is facilities access.
Any facility or part of a facility that is constructed by a state or local government entity must be constructed in strict compliance with applicable federal and state building accessibility codes and regulations, so that it is readily accessible to and usable by people with disabilities.
Alteration and Renovation of Existing Construction
In accordance with all applicable accessibility codes, when alterations affect the usability of a facility, the altered portion (as well as the path of travel, toilets, drinking fountains, and public phones) must be made accessible to people with disabilities.
Overall Program Access
The County is not necessarily required to make every pre-ADA facility fully compliant with current accessibility codes. However, all County programs, services or activities must be accessible to, and usable by, people with disabilities when viewed in their entirety. This is called “overall program access.” For example, not all pre-ADA swimming facilities must be accessible, but there must be an alternate and proximate swimming facility that is accessible.
Overall program accessibility can be achieved a number of ways. Structural options include altering existing facilities or constructing new ones. Nonstructural options include:
- Acquisition or redesign of equipment
- Assignment of aides to assist individuals with disabilities
- Provision of services at alternate accessible sites
The County must give priority to the option that results in the most integrated setting appropriate to encourage interaction among all users, including those with disabilities.
WHAT ARE THE ADMINISTRATIVE REQUIREMENTS?
County ADA Coordinator
Under Title II of the ADA, all public entities must designate a person or persons whose job it is to mediate complaints and to ensure compliance with the ADA and other disability rights laws. The County of Marin has designated the Manager of its Disability Access Program as the ADA Coordinator for County programs that serve the public. The Disability Access Manager facilitates and supports a team of Department Disability Access Coordinators in the various County departments; advises the public about the ADA and the County’s compliance obligations; and coordinates the investigation of grievances filed by the public alleging discrimination in County programs, services, or activities.
For additional information, please contact:
Disability Access Program
Marin County Department of Public Works
3501 Civic Center Drive, Room 304
San Rafael, CA 94903
(415) 473-4381 (Voice) or 473-3232 (TDD/TTY)
For Employment Information, please contact:
Marin County Department of Human Resources
3501 Civic Center Drive, Room 403
San Rafael, CA 94903 415-473-4396
CRS dial 711