Demand Our Access

In this episode, Desiree and I discuss the issues we are facing because the child support web page run by the attorney general of Texas and documents required by the child support program are inaccessible to those of us with disabilities. When we recorded this episode, we were hopeful it would demonstrate why the Department of Justice’s rule on accessible web and mobile content shouldn’t be delayed or weakened. Sadly, since we recorded this episode, the Department of Justice has chosen to give state and local governments an additional year to comply with the rule.

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

In this episode, we will be continuing our look at emergency preparedness. Specifically, we are going to look at how we can advocate for emergency alerts that are accessible to those of us with disabilities.

I greatly appreciate your feedback. If you want to contact me about this episode, or about Demand Our Access in general, you can fill out the contact me form on the Demand Our Access website. If you prefer email, you can write me at [email protected].

The next live episode of the Demand Our Access podcast will be on Saturday, April fourth at two Eastern. As of now, I don’t have a topic for that episode. If you have suggestions, let me know.

In continuing our look at the life-saving work of ensuring our state and local governments include those of us with disabilities in their emergency preparedness plans and operations, I thought I would demonstrate how we can advocate for accessible and inclusive emergency preparedness by working through a specific, narrow example. Since emergency alerts are the most important part of emergency preparedness because they warn us of pending emergencies, tell us what to expect, and tell us what we should do, it makes sense to focus this discussion on emergency alerts. If people find this episode helpful, I would be happy to continue this kind of work in future episodes. We could consider discussing advocating for accessible transportation during emergencies, sheltering, or something else.

In order to help us better advocate for accessible emergency alerts, I will first briefly describe the basics of accessible emergency alerts. I will then set forth a series of four questions for us to consider. If there is time, we will work through a scenario.

When a government issues warnings or updates about wildfires, flooding, earthquakes, hurricanes, or warnings of an active shooter (I hated including that one), they are all examples of governments issuing emergency alerts to the public. As you will see, the accessibility of emergency alerts are governed by requirements placed on government and broadcasters by the Department of Justice (DOJ) through its ability to define compliance with Title II of the ADA, and by the Federal Communications Commission (FCC) through its ability to regulate television and radio broadcasters.

The systems for providing emergency alerts are highly technical. In putting this episode together, I have only provided the information I believe we need to advocate for more accessible and inclusive emergency alerts. If you want to learn more about emergency alerts, I will link to sections of the Code of Federal Regulations when this episode is published to the Demand Our Access Website.

Wireless Emergency Alerts (WEA) are the alerts that appear directly on compatible mobile phones with a distinctive tone and vibration pattern. Wireless Emergency Alerts are used to transmit presidential alerts, imminent threat alerts, Amber alerts, and public safety messages.

Wireless Emergency Alerts are regulated under 47 C.F.R. Part 10 by the Federal Communications Commission. WEA uses cell broadcast technology rather than traditional SMS messaging. That means one broadcast message is transmitted to all compatible devices within a defined geographic area. It does not depend on subscriber lists and does not require prior registration.

WEA messages are limited to 360 characters. Originally, the limit was 90 characters. The FCC expanded the limit after concluding that the shorter format reduced clarity and created confusion. The 360-character limit applies only to the WEA transmission itself. It does not govern websites, linked content, or private alert systems. The 360-character limit includes URLs and phone numbers people can call for additional information about the alert.

The second major system is the Emergency Alert System (EAS). EAS interrupts television and radio programming. It is governed under 47 C.F.R. Part 11. When activated, it delivers an audio message and, on television, a visual crawl.

Both WEA and EAS operate through a federal gateway known as the Integrated Public Alert and Warning System (IPAWS). IPAWS is administered by the Federal Emergency Management Agency (FEMA). Governments must register with FEMA, execute a formal Memorandum of Agreement, complete training, and use approved software before issuing alerts. Alerts are digitally authenticated before distribution. Emergency alerts are treated as secure infrastructure.

Under 47 C.F.R. § 79.2, emergency information presented visually must also be conveyed aurally for individuals who are blind or have low vision. Conversely, emergency information presented aurally must be conveyed visually for individuals who are deaf or hard of hearing. Specifically, when emergency information is presented during a regularly scheduled newscast, or during a newscast that interrupts regular programming, that emergency information must be made accessible to people who are blind or low vision. Generally, emergency information that is not provided during a regularly scheduled newscast or as part of a newscast that interrupts regularly scheduled programming must be made accessible to people who are blind or low vision through use of the secondary audio programming channel. Emergency information that is presented through the audio portion of programming must be made accessible to people who are deaf or hard of hearing through the use of closed captioning.

When putting together this episode, I was shocked to discover this section of law. I have never watched a television newscast where the entirety of emergency information that was created to appear strictly as visual content was made accessible to me as a blind person.

Under Title II of the ADA (Title II), covering state and local governments, government is required to ensure all communications are as effective for those of us with disabilities as they are effective for people without disabilities. This means that under Title II all emergency communications created by or on behalf of any state or local government must be accessible to those of us with disabilities.

Many state and local governments contract with private companies to use digital platforms that can call, email, or text emergency alerts to people who sign up for the service. These services are not covered by any character limits. These platforms usually allow governments to include links to websites, links to social media posts, and in some cases the ability to access video content. Since the communications going out through these third-parties are going out on behalf of state and local governments, the communications published through these platforms are covered by Title II. So, these communications must be as effective for those of us with disabilities as they are effective for those without disabilities.

When a government sends out an emergency alert that includes a link to a government website or a social media post created by the government to provide the public with more information about an emergency, all of that digital content is covered by Title II. This is especially true in the aftermath of the Department of Justice’s rule on web and mobile accessibility under Title II.

Don’t worry, this is not a pop quiz. Obviously, no one has to participate unless they feel like doing so.

What are some of the steps you could take to have some of your questions answered?

Your local government has contracted with a community organization, like Upstream Access, to hold a listening session with members of the disability community about emergency preparedness. For the purposes of this exercise, I will pretend I am the representative from the government. All of you are attending the listening session to find out how the government’s emergency alerts are made accessible to the disability community.

This is a special episode of the Demand Our Access podcast. In this episode, I describe my journey with emergency preparedness for those of us with disabilities. I also describe my personal advocacy to ensure my local area has emergency preparedness plans and operations that are accessible to and inclusive of those of us with disabilities.

This episode was a very special one in the history of the Demand Our Access podcast because it was the first time I was joined by a guest.

Erin Taylor from Upstream Access joined me to discuss emergency preparedness for those of us with disabilities. I was thrilled to have Erin join me because she is one of the people doing the most to ensure those of us with disabilities are prepared when emergencies strike.

Among other things, Erin and I discussed Person-Centered Emergency Preparedness (P-CEP) a program developed in Australia and brought to America by Erin and Upstream Access. P-CEP is a program that certifies people in assisting disabled people in developing our individual emergency preparedness plans. Currently, I’m getting certified in P-CEP.

If, after listening to the interview, I would appreciate your feedback on dedicating an episode to P-CEP.

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

In this episode, we will be discussing emergency preparedness for those of us with disabilities. Specifically, I will explain why emergency preparedness is the most important issue we could ever advocate for, review what state and local governments are required to do to ensure their emergency preparedness is accessible to and inclusive of those of us with disabilities. After the review, we will use scenarios to see how we can advocate with our state and local governments to work with them on making their emergency preparedness accessible to and inclusive of us.

I greatly appreciate your feedback. If you want to contact me about this episode, or about Demand Our Access in general, you can fill out the contact me form on the Demand Our Access website. If you prefer email, you can write me at [email protected].

The next live episode of the Demand Our Access podcast will take place on Saturday, February seventh at two Eastern. I believe we will be continuing our look at emergency preparedness during that episode. We may even have a guest join us. I will keep you updated through the Demand Our Access website.

Emergency preparedness is the most important issue we will advocate for with our state and local governments. Not being able to access web content matters. Not being able to apply for jobs matters. Not being able to enter buildings matters. Not having interpreters if you need them matters. Emergency preparedness is literally life or death. If we die in an emergency because our state and local government didn’t properly accommodate us, it won’t matter to us if a website is inaccessible, or if we can access a building.

Since there are very few advocacy efforts addressing emergency preparedness, and because most state and local governments hardly comply with the ADA to begin with, the odds are extremely high that if a disaster took place in your community people with disabilities would die deaths that would have been preventable had your state and local government followed their legal requirements and ensured their emergency planning was accessible to and inclusive of those of us with disabilities.

If we want to ensure we don’t die a preventable death when an emergency hits our communities, we must advocate with our governments for accessible and inclusive emergency planning and response.

If you are one of those people who doesn’t believe government could or should have a role in your protection during an emergency, I want to ask you to consider what happens when an emergency requires you to evacuate your home and the government’s notice is inaccessible to you? What happens if you are required to evacuate but there is no accessible way for you to evacuate? What if you are required to evacuate to an inaccessible shelter? Issues like these and many more can and must be addressed by proper emergency preparedness on the part of our state and local governments.

Six years ago I found two resources that have profoundly influenced my interest in emergency preparedness for people with disabilities. The Partnership for Inclusive Disaster Strategies released an after action report in May of 2018 detailing widespread governmental failure to properly plan for people with disabilities as a part of emergency preparedness. The report made numerous suggestions as to how emergency preparedness could be more inclusive of people with disabilities while illustrating how ineffective planning led to preventable death, injury, and illness. Appendix G of the after action report has a detailed discussion of the limitations of additional needs registries. Additional needs registries became somewhat popular among state and local governments in the 1990s as a reported way to ensure people with disabilities got assistance during emergencies. The report from The Partnership for Inclusive Disaster Strategies found too few people register, the registries do not guarantee help but planners count on them, knowing someone’s home and/or work address does not mean you know where they are in a disaster, and far better data is available.

The Department of Homeland Security conducted several listening sessions on emergency preparedness and people with disabilities. The listening sessions also detailed widespread governmental failure at all levels to adequately plan to accommodate people with disabilities during disasters.

Two sections of this episode will demonstrate what the Department of Justice (DOJ) requires of state and local governments under Title II of the Americans with Disabilities Act (Title II) when comes to ensuring emergency preparedness planning is inclusive of those of us with disabilities. The next section will discuss emergency preparedness requirements in settlements DOJ has made with local governments under Project Civic Access. The subsequent section will discuss a guide issued by DOJ in October of 2008 to assist local governments in incorporating accessibility into their Emergency Action Plan (EAP).

The primary way DOJ enforces compliance with Title II is through Project Civic Access. To date, DOJ has reached more than 220 settlements with at least 206 cities, counties, and villages in all 50 states.

Every settlement I have reviewed includes emergency preparedness. To demonstrate what DOJ typically requires of state and local governments when it comes to ensuring emergency plans are inclusive of people with disabilities, I will discuss the emergency preparedness requirements in the 2018 settlement between DOJ and the City and County of Denver, Colorado (Denver).

I will paraphrase what Denver is required to do in its emergency operations plan its (EOP). If you are interested, the emergency preparedness provisions of the settlement are set forth in section h of the Remedial Actions section.

Information about temporary housing will notify people about accessible housing

Denver has additional requirements related to physical changes to emergency shelters:

Denver will notify shelter facilities subject to Title III that they have a year from the effective date of the agreement to remove barriers to access for people with disabilities.

Within one year of the effective date of the agreement, an independent architect hired by Denver will survey the shelters for compliance. If all barriers are not removed within 18 months, Denver will identify alternate accessible shelters as confirmed by the independent architect.

Within three months of the effective date of the agreement and until all shelters are accessible, Denver will widely publicize a list of accessible shelters.

Note, there is a more modern resource on emergency preparedness published by DOJ on including people with disabilities in emergency operations plans under Title II called

Emergency Planning. I am working off of the older document in this podcast because the subjects covered in both are very similar. Most of the differences between the two documents are more technical than I think we need to cover here. Still, I will link to the more modern DOJ document on emergency preparedness on the website so you can consider it too. I will say the newer document does link to a few more resources. So, there are good reasons for folks interested in inclusive emergency preparedness to look at both.

In Making Community Emergency Preparedness and Response Programs Accessible to People with Disabilities, DOJ gives local governments more specific advice around creating accessible EOPS. The guide breaks its advice into seven categories:

Evacuation – Procedures should be in place to allow people with disabilities to evacuate with or without assistance. Whether or not a registry is used, plans should address accessible transportation needs for people with disabilities.

Emergency transportation – Contract with entities possessing accessible vehicles to use them to transport people with disabilities during emergencies.

Sheltering – Survey shelters for barriers to access. Until all shelters are accessible, publicize accessible shelter locations. Generally, people with disabilities cannot be segregated into separate shelters.

Access to medication, refrigeration, and back-up power – Ensure a reasonable number of shelters have a way to keep medications refrigerated and back-up power. These shelters should be made available to people with disabilities needing these services first.

Access to mobility devices and service animals while in transit and shelter – People with mobility devices should have access to the devices they need during transit and at shelters. That means government must be prepared to provide mobility devices and meet other needs in shelters.

Access to information – Train shelter staff on providing basic effective communication. This includes reading printed material to someone with a disability that makes reading print difficult and exchanging notes with someone who has a speech and/or hearing disability.

The Pacific ADA Center (a member of the ADA National Network) has produced a lot of great resources on emergency preparedness and people with disabilities. Their page on state and local governments planning for inclusive emergency operations will be well worth your time if you want to learn more about what our local governments are supposed to do to better protect those of us with disabilities during emergencies.

The Pacific ADA Center’s page of resources for individuals with disabilities during emergencies is a great place to start learning about how we as people with disabilities can plan to ensure we have better odds at coming through emergencies.

As a reminder, the scenarios we will work through are not to be considered advice you should strictly follow when you need to advocate. It is doubtful your situation will be an exact replica of any of the scenarios discussed here. So, you should learn tips you can apply to your own advocacy situation, but don’t think what is covered here is the exact way you should advocate.

How should you begin to figure out what your local government has done to include us in their emergency preparedness?

What things should you be looking for in your state and local government’s emergency planning?

What is the initial way governments should include us in their emergency planning

This is the recording from the October 18,2025 live episode. In this episode, we had a good discussion about how to advocate for our rights in private housing situations when the landlord or property manager knows nothing about the rights we have under the Fair Housing Act.

To make this easier to follow, the content has been edited to remove the breaks and pauses. All of the discussion that took place during the episode is part of this recording.

In this episode, I tried something new. I began with a brief recap of our rights under the Fair Housing Act in private housing situations. Then, I posed some scenarios to the people listening live in Zoom and we had interactive discussions as to how we could advocate for our rights under the fictional scenarios.

Note, I haven’t yet figured out how to make a transcript of these kids of recordings. So, I don’t know how to yet make them accessible to people with hearing disabilities. Any thoughts on this would be appreciated.

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

In this episode, I am briefly introducing the Fair Housing Act (FHA) and its amendments. Since this is intended to be an introduction to the FHA, I will only be covering the protections afforded people based on disability status in this episode. If we continue this discussion in future episodes, I would be happy to discuss the protections based on other protected classes.

I greatly appreciate your feedback. If you want to contact me about this episode, or about Demand Our Access in general, you can fill out the contact me form on the Demand Our Access website. If you prefer email, you can write me at [email protected].

The next episode of the Demand Our Access podcast will take place on Saturday, September sixth. As of now, I’m not sure what I will cover in that episode. If there is interest in more about the Fair Housing Act, let me know.

As always, I will not be providing citations to sections of law during this episode. But the citations will be provided when this episode is posted to the Demand Our Access website.

Since I have not yet covered the Fair Housing Act (FHA) through Demand Our Access, this episode is intended to be a brief introduction to the FHA. I’m keeping this introduction brief, because I want to gage interest from the community in the subject of fair housing. If there is interest in diving deeper into housing discrimination, I’m very open to continuing this discussion into future episodes.

Since this is a brief introduction, I have sought to keep the explanations at a very high-level. If we continue the housing discrimination discussion in future episodes, I will take deeper dives into specifics based on your feedback.

I’m trying this new approach to introducing new subjects to see if community will assist me in planning what subjects are covered and how they are covered. I’m also hoping that by breaking things into smaller pieces they will be more relatable.

With that explanatory information out of the way, let’s begin our introduction to the Fair Housing Act.

In this episode, I will be covering the following five topics:

Protected Classes and Scope

Impact on People with Disabilities

The Fair Housing Act (FHA) was signed into law by President Lyndon B. Johnson on April 11, 1968, one week after the assassination of Dr. Martin Luther King. When it became law, the FHA was added as Title VIII of the Civil Rights Act of 1964. The original statute barred housing discrimination in terms of race, color, religion, and national origin.

In 1974, the FHA was amended to add sex as a protected class. In 1988, the Fair Housing Amendments Act (FHAA), added familial status and disability as protected classes when it comes to housing. The FHAA also added accessibility requirements that applied to newly constructed multi-family dwellings of four or more units intended to be occupied after March 13, 1991 to include certain accessibility features. Those accessibility features include: an accessible entrance on an accessible route; accessible common and public use areas; doors wide enough to accommodate a wheelchair; and more.

The FHAA also granted the Department of Housing and Urban Development (HUD) additional enforcement powers through the introduction of administrative hearings, civil penalties, and expanded judicial remedies.

The FHAA transformed the Fair Housing Act from being a law that was largely symbolic to a law that would actually try to provide protections to those facing housing discrimination through meaningful enforcement.

In 1995, the Housing for Older Persons Act (HOPA) provided criteria for 55+ and 62+ housing and modified the familial status provisions of the FHA.

In 2021, HUD issued a directive covering gender and sexual identity under the FHA’s provision barring sex-based discrimination. Not to get too political, but I think most of us understand that today HUD is not likely to follow the 2021 directive.

The FHA became law with the promise of eliminating housing discrimination and to promote more integrated, inclusive communities. It prohibits discrimination in the sale, rental, financing, advertising, or zoning of housing on the bases of protected class. The protected classes under the FHA are:

National origin

Religion

Sex (including gender identity and sexual orientation)

Disability

Familial status (including homes with children under the age of 18, people who are pregnant, and families with adopted or foster children)

HUD enforces the provisions of the FHA through its Office of Fair Housing and Equal Opportunity (FHEO). Among its responsibilities, the FHEO:

Conducts compliance reviews of recipients of federal funding

Initiates charges through administrative law judges

Refers cases to the Department of Justice (DOJ) in cases of systemic discrimination

DOJ enforces its responsibilities under the FHA through its Housing and Civil Enforcement Section. DOJ is responsible for the following housing discrimination issues:

Lawsuits filed in federal court seeking injunctive relief, monetary damages, and civil penalties

Criminal cases involving harassment, violence, or threats that interfere with housing rights

Accepts referrals from Hud in cases of failed conciliation or serious systemic allegations

In most cases, housing discrimination you face will be addressed by HUD. DOJ only gets involved when the discrimination involves at least several people, when HUD cannot resolve the discrimination, or when the discrimination involves criminality.

As I have mentioned in previous episodes, like when we discussed our rights under Title II of the ADA, your state may also have an agency that can investigate housing discrimination. In some cases, your state agency may even partner with HUD in investigating Housing discrimination. Given today’s political realities, you may want to see if your state has its own housing laws and an agency that enforces them. If your state does have its own housing discrimination laws, you may want to consider filing with your state. In some cases, your state’s laws may provide greater protections than are provided under the FHA. If there is interest, I would be happy to discuss that possibility in a future episode.

The FHA covers nearly all forms of housing including:

Public housing and subsidized developments

Mortgage lending and insurance

Appraisals

Homeowners associations

Zoning decisions

It prohibits discriminatory actions such as:

Setting different terms or conditions

Making discriminatory advertisements or statements about housing

Steering people to different areas

Failing to make reasonable accommodations for disabled people

Discrimination may be intentional or unintentional.

I understand some of the terms discussed above may be confusing. If you have specific questions about who is covered and/or what acts or practices are covered, I can revisit any of that in future episodes. Again, this episode is intended to be a brief introduction.

The FHA affords those of us with disabilities the following protections:

Assistance Animals

What we are talking about here is the need to make changes to an existing home so that it is more accessible to a disabled person. Think about someone needing to add grab bars in the bathroom to make using the toilet, shower, or tub more accessible.

In these cases, the disabled person cannot be denied the opportunity to have the accessibility improvements made, but the cost of those improvements is entirely the responsibility of the disabled person. Even worse, landlords can insist the disabled person have the accessibility improvements removed when they leave the home. When the landlord insists the accessibility improvements be removed, the cost of removing the accessibility features is also entirely the responsibility of the disabled person. Additionally, the landlord can require the disabled person to establish an escrow account to ensure funds will be available to restore the premises to its prior, less accessible state.

The landlord may also condition approval of the modification on the disabled person providing a description of the work to be done and assurances that the work will be done correctly.

These requirements are a huge part of the reason why so few homes are accessible to people with mobility devices and why people using mobility devices have an incredibly difficult time finding accessible housing.

To make sure there is no confusion, I have used the term “home” in this section to keep things simple. But all housing covered by the FHA including houses, apartments, condos, and more are covered by these requirements.

It shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling unit, including public and common use areas. This is the section of law that enables people to bring their service animals into housing.

The reasonable accommodation right is one those of us with disabilities will use any time we need an accommodation to equally enjoy the premises.

Since this is a brief introduction to the Fair Housing Act, I’m not going to discuss all of the technicalities involved in construction. For now, I will mention that while at first blush multifamily buildings with at least four units that were originally occupied after March 13, 1991 are required to have certain accessibility features, there is an exception related to the terrain or any unusual characteristics at the site making the inclusion of the accessibility features impractical.

Note, I’m using the term “assistance animals” in this episode because in housing situations both service animals and support animals (including animals providing emotional support) are covered.

Assistance animals are not subject to typical fees associated with pets in housing situations. So, your landlord cannot require you to provide pet deposits because you have an assistance animal.

This completes my brief introduction to the Fair Housing Act. I look forward to your feedback, especially feedback related to what you would like to know more about under the Fair Housing Act.

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

I greatly appreciate your feedback. If you want to contact me about this episode, or about Demand Our Access in general, you can fill out the contact me form on the Demand Our Access website. If you prefer email, you can write me at [email protected].

Since the ACB convention is the first week in July and given that our family has a lot happening in July, I will not be doing a live episode of Demand Our Access in July. So, the next live episode of the Demand Our Access podcast will take place on Saturday, August second. As of now, I don’t know what topic I will cover in August. As always, I’m open to your ideas.

Since I won’t be doing any live episodes during the month of July, I will be working on updating the Demand Our Access website. I will have more information about the updated website and maybe even demo it in August.

As a reminder, Title II of the Americans with Disabilities Act (Title II), primarily covers state and local governments. I have mentioned complaints under Title II in previous episodes. But this time I will be taking a deeper dive into complaints under Title II. I’m doing that because I think it is more important than ever for us to understand our options for filing complaints under Title II and the rights we have in filing directly with our state or local government.

Again, I will not be mentioning citations to sections of law during this episode. I will post the citations to the specific sections of law when this episode is posted to the Demand Our Access website.

As a reminder, Title II often confers responsibilities to what the law calls “public entities.” In general, public entities are an entire local government or individual sections of a local government. Sometimes, different responsibilities under the law apply to public entities depending on whether or not they employ at least 50 employees. To keep this simple, I will, most of the time, refer to local governments (not public entities). The rights we have and the responsibilities the government must meet will be the same. The technical differences in what defines a public entity don’t change our rights as disabled people.

In this episode, I will cover the following five topics:

Filing Complaints with the Department of Justice

Tips on filing complaints

When a local government is discriminating against you based on your status as a disabled person, you can file your complaint in one of three places:

A federal agency that oversees the program that is the basis of your complaint

With the Department of Justice (DOJ)

You are not limited to filing in only one of the three places; for example, you could file both with your state or local government and with DOJ.

One important thing to remember is the time periods in which you must file. Complaints filed with DOJ or a federal agency must be filed within 180 days of the alleged discrimination. State and local governments, on the other hand, can require that complaints under Title II be filed within 60 days of the alleged discrimination. When facing discrimination, it is a very good idea to figure out your local government’s complaint procedures (if any), because you may need to file within 60 days of the events comprising the discrimination.

You don’t have to be the person who actually experienced the disability discrimination in order to file a complaint. As long as you have the permission of the disabled person or you are their guardian, you can file a complaint under Title II.

If you are so inclined, you can also file a complaint on behalf of a class of disabled people. But that’s something most people won’t try. So, I’ll leave it there.

Under Title II, public entities are required to notify those of us with disabilities of, among other things, of our right to file a complaint with them when we believe they are violating our rights under Title II. In this case, I have used the term “public entity” because I have seen situations where a state or local government has adopted a general framework for complaints but has allowed individual agencies within the local government to establish their own procedures for the investigation and resolution of complaints filed under Title II. While it would be nice to assume that the filing deadlines are the same among agencies of a state or local government, it’s important to remember they may not be the same.

If you are interested in filing a complaint with your state or local government, I would begin by seeing if they have published a notice of rights. If they have and it was done correctly, the notice of rights should give you the basic ideas as to how you should file your complaint with them and the time period in which they are requiring you to file your complaint. If the language in the notice of rights leads you to believe there is a question as to with whom the complaint would be filed, I would ask their designated ADA coordinator to tell you how you should file your complaint, with whom, and about the time period you have to file.

To keep this simple, you could just file your complaint within 60 days of the alleged discrimination. As long as you file with your state or local government within 60 days, your complaint will be considered timely.

The complaint procedures developed by your state or local government (whether they are applicable to the entire state or local government or if agencies within the state or local government have developed their own complaint procedures) must be designed to ensure the investigation of complaints is equitable and that complaints are resolved in a timely manner. Here are steps they are to take to ensure they investigate complaints equitably and resolve them in a timely manner:

Once your complaint is filed, you should be able to meet with someone to discuss your complaint within a reasonable amount of time (typically 15 days).

You should get an update on your complaint within 15 days of that initial meeting.

All communications to you from your state or local government regarding the complaint should be accessible to you.

The complaint procedures should include a right to appeal.

The contact information for someone to ask about the complaint should also be provided.

I want to briefly touch on some of the above points.

The question of accessibility is, obviously, really important. Since it’s better for everyone if your complaint is filed in writing, there are many ways this could be accomplished. Either they could provide an accessible online form, they could have someone assist you in completing an inaccessible online form, or someone could take your complaint over the phone. No matter how it’s done, your state or local government must provide you an accessible way to file your complaint.

Once your complaint has been filed, any communication from your state or local government to you about your complaint including but not limited to their initial response, questions they may have, their initial determination, and anything related to their appeals process and the ultimate decision must be accessible to you. As soon as you contact them about your complaint, you should let them know how you wish to be contacted about the complaint. Remember that when it comes to effective communication, your state or local government is required to give primary consideration to the method(s) you wish them to use when contacting you. They also need to ensure you have an accessible way to contact them about every aspect of your complaint and the complaint process.

The issue of who to contact can also be tricky. Most people refer to the person who is supposed to address complaints as the ADA coordinator. Some state and local governments have one ADA coordinator for the whole state or local government. Others have created a situation where individual agencies have their own person designated as the ADA coordinator. In those cases, it is very unlikely that each agency of the state or local government will have its own ADA coordinator; rather, it is likely that a few large, public-facing agencies will have a designated ADA coordinator, but smaller agencies will not.

If your state or local government has not designated anyone to be the ADA coordinator, you should figure out how they address complaints under other civil rights las, like Title VI of the Civil Rights Act of 1964. No matter what, your state or local government must have someone, even if they don’t know how to do it, designated to investigate and resolve civil rights complaints.

Even some of the state and local governments that claim to have a complaints procedure under Title II, don’t have the required appeals process in their complaint procedures. But there are some state and local governments that have properly included an appeals process in their complaint procedures. If there is an appeals process, the appeal should be heard by someone who was not involved in the original investigation and/or resolution of your complaint. If the appeals process is not independent from the initial investigation and resolution of your complaint, you should really let them know their appeals process violates Title II.

If your state or local government doesn’t have an appeals process and you disagree with their determination, you should let them know you will file with the Department of Justice. If you have the option, you may also want to let them know you will file with a state agency that will investigate civil rights complaints. This is especially important given the current political climate in Washington, DC.

In addition to DOJ, the following 10 federal agencies accept complaints filed under Title II:

Department of Transportation

Department of Health and Human Services

Department of Housing and Urban Development

Department of Labor

Department of agriculture

Department of the Interior

Department of Veterans Affairs

Department of Homeland Security

Environmental Protection Agency

Honestly, I have no idea how these agencies are currently doing many of the functions they once did, including investigating civil rights complaints; for example, I think the Department of Health and Human Services is now overseeing the education of disabled people. But if you find a federal agency that will still accept civil rights complaints, there still is a chance it could be investigated faster than it would be investigated by DOJ. There is also a chance that by filing with one of these other federal agencies you could avoid some of the politics around the Department of Justice.

If you are interested in filing with one of these other federal agencies, I would visit their website and see if you can find anything about civil rights complaints. If nothing is obvious, you may want to call them on the phone and ask where you should file your Title II complaint.

When you file with a federal agency, the agency will first review the complaint to ensure it is the proper agency to investigate your complaint. If the federal agency determines it is not the proper agency to investigate your complaint, it has the responsibility to forward your complaint to the right federal agency.

Remembering the 180 days from the alleged discrimination in which you must file, the complaint is considered filed as soon as it is filed with a federal agency. Even if the agency you filed with determines it is not the correct federal agency to investigate your complaint, your complaint is considered filed in a timely manner as long as it was filed with a federal agency within the 180-day window.

Once a complaint is determined to be complete (there is enough information for the federal agency to investigate) you will be notified that your complaint has been accepted and that an investigation has begun.

If a federal agency notifies you that your complaint is not complete and you provide no further information, your complaint will be closed. If your complaint is closed because it wasn’t complete, it is considered closed without prejudice. This means you are able to file the complaint again; however, the newly-filed complaint must also be filed within the 180-day window.

Where appropriate, a federal agency can attempt informal dispute resolution to bring the state or local government into compliance with Title II. Informal dispute resolution typically involves mediation, conciliation, or negotiated settlement. Without getting too far into the weeds on this, the basic idea of informal dispute resolution is when the federal agency brings the parties together and attempts to help them reach agreement on a settlement.

If informal dispute resolution doesn’t bring about an agreement, the federal agency will send a letter to both parties with its findings. The so-called letter of findings will also be sent to DOJ if the federal agency determines there is at least one violation of Title II.

You can always file with DOJ when you believe you have been discriminated against by a state or local government. To file, you can contact the Department of Justice’s Civil Rights Division. The form is pretty straightforward.

Personal experience has taught me it could be a months-long process to get anywhere with your complaint. Still, it’s worth filing.

No matter where you file your complaint, you need to provide enough information to enable them to do a proper investigation. So, your complaint should include the following:

Your address

Your phone number

Your email address

The date of the discrimination

A location where the discrimination took place

The name of the entity you believe discriminated

The name and/or position description of those who you believe discriminated against you

A description of the discrimination

A list of any witnesses

If you can, you should also include the following:

Any accommodations you may need to participate in the complaint process

If you are completing an online form, you should be given fields to enter your name, address, phone number, email address, and a field where you can describe the discrimination. It is unlikely the form you are completing will enable you to tell them what accommodations you need to participate in the complaint process. So, you will need to make room for that in the field where you describe the discrimination. In my view, this is discrimination. But it’s the way things usually are when these forms are created.

Note, if you are completing an online form, it’s likely you will be completing a generic civil rights complaint form. If this is true, just do your best with the fields you have been provided. If you don’t feel like the provided fields are sufficient, make sure you let them know you can provide additional information that didn’t fit in the fields you were provided.

This completes my deeper dive into complaints under Title II. Thank you for listening. I appreciate your support.

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

I greatly appreciate your feedback. If you want to contact me about this episode, or about Demand Our Access in general, you can fill out the contact me form on the Demand Our Access website. If you prefer email, you can write me at [email protected].

The next live episode will take place on Saturday June 21 at 2:00 PM Eastern time. Unless something changes, I will be diving deeply into complaints under Title II in that episode.

Since I’m expecting to be preempted by the ACB convention during the first week in July, and with some things that will be happening with our family during the month of July, I will be taking the month of July off from the Demand Our Access podcast. So, after the June 21st episode, there will not be another episode until August.

In this episode, I am continuing my revisited look at Title II of the Americans with Disabilities Act (Title II). As a reminder, Title II primarily covers state and local governments.

In this episode, I will be covering topics I haven’t covered before as a part of the Demand Our Access project. So, I will not be discussing effective communication, service animals, general prohibitions against discrimination, and other topics previously covered. For information about those topics, please check out the episodes previously posted to the Demand Our Access website.

During the month of July, I will be updating the website so that the page on Title II links to the episodes I think will help you best understand Title II.

In this episode, I am also not covering topics that primarily tell state and local governments how to comply with Title II. The Roadmap section will tell you exactly what will be covered in this episode.

Again, I will not be mentioning citations to sections of law during this episode. I will post the citations to the specific sections of law when this episode is posted to the Demand Our Access website.

As a reminder, Title II often confers responsibilities to what the law calls “public entities.” In general, public entities are an entire local government or individual sections of a local government. Sometimes, different responsibilities under the law apply to public entities depending on whether or not they employ at least 50 employees. To keep this simple, I will, most of the time, refer to local governments (not public entities). The rights we have and the responsibilities the government must meet will be the same. The technical differences in what defines a public entity don’t change our rights as disabled people.

In this episode, I will be covering the following three topics:

Since I have decided, where possible, to title this episode and future episodes with the topics to be addressed, I may not include the roadmap section in future episodes. I included the roadmap section here, because I wanted it to be consistent with the previous episodes on revisiting Title II.

Accessibility features are those facilities and equipment necessary for a local government to provide access to its activities, programs, and services to those of us with disabilities. This means that things like elevators provided to enable people with disabilities to move between floors are required to be maintained in working order. Electronic door openers are also examples of accessibility features that must be maintained in proper working order.

There are only two things you need to know about local governments being required to maintain accessibility features:

This section does not prohibit isolated or temporary interruptions of access or service due to maintenance or repairs.

If a local government installs automatic door openers to assist people with disabilities in opening the heavy doors at city hall, the local government must ensure the electronic door openers are maintained in working condition. While it may be reasonable for a service interruption to last for a day or two if the electronic door openers fail, not repairing them for weeks is very likely to violate this provision of Title II.

The rules related to assistive mobility disabilities are set forth in two sections: Use of Wheelchairs and Manually-Powered Mobility Aids and Use of Other Power-Driven Mobility Devices.

Local governments shall permit the use of wheelchairs and manually-powered mobility aids, crutches, walkers, canes, braces, and others in any areas open to pedestrian use.

Other power-driven mobility devices are devices not specifically designed for use as mobility aids that rely on motor power, not manual effort. The best examples of power-driven mobility devices that have not been expressly designed as mobility devices but that are typically used as assistive mobility devices are scooters and golf carts. A local government shall make reasonable modifications in its policies, practices, or procedures to permit the use of other power-driven mobility devices by individuals with mobility disabilities, unless the public entity can demonstrate that the class of other power-driven mobility devices cannot be operated in accordance with legitimate safety requirements. The phrase “legitimate safety requirements” relates to the ability of local governments to establish legitimate safety requirements necessary for the safe operation of their activities, programs, and services. But those legitimate safety requirements must be based on actual risks, not on mere speculation, stereotypes, or generalizations about disabled people.

I want to make sure you understand that when a local government is considering your request to use a power-driven device as an assistive mobility device, the local government cannot ask you questions about the nature and extent of your disability. The only thing they can consider is whether the class of power-driven device you want to use as an assistive mobility device can be safely operated in the facility where you wish to use it as an assistive mobility device.

Local governments can ask for assurance that use of the power-driven device is related to a disability. In doing so, local governments shall accept as proof of your disability a state ID or parking placard issued to disabled people. If you don’t have physical state-issued proof of disability, the local government shall accept verbal assurance, not contradicted by observable fact, that you are disabled.

For example, if you want to use a scooter in a historic park where power-driven devices aren’t typically allowed, your verbal assurance is enough to justify the contention that the scooter is being used by you as an assistive mobility device as long as you aren’t also walking around and doing other things that would tend to call into question your need to use the scooter as an assistive mobility device.

Another thing you should know is that when a local government makes this determination, they are allowed to consider potential damage to the land and the environment where you wish to use the power-driven device.

I called this section of the episode Existing Facilities, because we are talking about the accessibility of facilities that existed prior to the ADA and related laws required the physical facilities of local governments to be accessible to those of us with disabilities. But it’s worth noting that there are three related sections of law that affect the requirement of local governments to provide accessible existing facilities: Discrimination Prohibited; Existing Facilities; and New Construction and Alterations.

Except as provided in the Section on existing facilities, no qualified individual with a disability shall, because a local governments facilities are inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a local government, or be subjected to discrimination by any local government. What this section is trying to say is that regardless of the accessibility of a local governments physical facilities, the activities, programs, and services offered by that local government must be accessible to those of us with disabilities.

A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This requirement does not:

Require a local government to take any action that would threaten or destroy the historic significance of a historic property

Require a local government to take any action it can demonstrate would fundamentally alter the activity, program, or service, or would result in undue administrative and financial burdens

When a local government determines making a portion of or the entirety of an existing facility accessible would result in fundamental alterations and/or undue administrative and financial burdens, the local government has the burden to prove that making the existing facility accessible would result in the alterations and/or burdens. The decision that compliance would result in alterations or burdens must be made by the head of a public entity or by their designee after considering all resources available for use in the funding and operation of the activity, program, or service. The finding of alterations and/or burdens must be provided in writing and must offer justifications to demonstrate the alterations and/or burdens. If a determination of alterations and/or burdens is made, the public entity must make any available changes to ensure people with disabilities have access to the activities, programs, and services.

Remember, when considering undue financial burdens, it is the budget of the entire local government that is considered. We are not talking about the budget for the program in question or even the budget of the office providing the program in question. For the cost of making an existing facility to be an undue financial burden, the cost is compared with the entire budget of the local government.

When an existing facility cannot be made accessible, the law provides several options local governments can use to ensure people with disabilities have access:

Assignment of staff to assist in the navigating of inaccessible facilities

Home visits,

Delivery of services to your home

An more

To make this clear, when a local government determines the area of an existing facility where a particular program of that local government is offered cannot be made accessible without fundamentally altering the program, and/or without resulting in undue administrative and financial burdens, the local government must find other ways to ensure disabled people have access to that program. Maybe the program is moved to an accessible facility. Maybe a staff member comes to your house to help you get what you need from the program. Maybe the local government has something you need delivered to your house because you can’t enter the inaccessible facility to get it. No matter what, the local government must do what it can to ensure those of us with disabilities have access to its activities, programs, and services.

The remaining subsections in the Existing Facilities section of Title II are technical and not necessary for me to cover here.

New Construction or Alterations is a very technical section of the law addressing how local governments are required to make their existing facilities accessible. I’m not going to cover those here.

In general, local governments are required to make their activities, programs, and services accessible to and useable by those of us with disabilities. This requirement applies even if some of their facilities existed prior to the ADA and related requirements that apply to the accessibility of the facilities of local governments, resulting in those facilities being inaccessible today. Even if a local government determines that a portion of or the entirety of an existing facility cannot be made accessible, it is required to ensure the activities, programs, and services offered in that facility can be provided accessibly. This is true even if the local government must take action it doesn’t want to take, like moving programs to more accessible facilities.

This is the end of our latest revisited look at Title II of the ADA. Thank you for listening. I very much appreciate your support.