Demand Our Access

About Me

It has been more than two years since I shared a little about me in one of these episodes. So, I am going to do it here for the benefit of people who have started listening since I last shared a bit about myself.

Education and Certifications

I have a law license from Massachusetts.

I am a certified ADA coordinator.

I am a certified Professional in Accessibility Core Competencies’.

I am a member of the ADA Trainer Leadership Network.

Professional Background

I am the disability analyst for Portland Parks & Recreation in Portland, Oregon.

Previously, I was the ADA Title II disability policy analyst in Portland’s Office of Equity and Human Rights.

I was a contract attorney for Disability Rights Advocates in Berkeley, California.

I was a staff attorney for the then American Bar Association’s Commission on Mental and Physical Disability Law.

A Few Personal Things

I was born totally blind.

I am a member of the American Council of the Blind.

I live in Oregon with my wife Desiree and the two youngest of my three stepdaughters.

I an a huge sports fan, especially baseball.

I am an avid reader and writer.

While I enjoy learning about assistive technologies, I know Desiree knows more about them than me.

I love animals. We have two cats, Rain and Yoyo.

Disclaimer

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.

Resources

The provisions of Section 504 are set forth in 10 C.F.R. § 4.

The Department of Justice’s Guide to Disability Rights Laws has a good description of Section 504.

The Department of Education also has an informative page on Section 504.

As always, any resources discussed in this episode will be linked to when the episode is posted to the Demand Our Access website.

Section 504

Introduction

Section 504 of the Rehabilitation Act of 1973 (Section 504) is a landmark civil rights law that prohibits discrimination based on disability. It was designed to ensure those of us with disabilities are not excluded from, denied the benefits of, or subjected to discrimination under any program or activity that receives federal financial assistance. Section 504 laid the foundation for future disability rights legislation in the United States, most notably the Americans with Disabilities Act (ADA).

History of Section 504

The Rehabilitation Act of 1973 was signed into law by President Richard Nixon on September 26, 1973. Although the act as a whole aimed to provide support for people with disabilities in areas such as employment and independent living, it was Section 504 that specifically addressed civil rights. The language of Section 504 was groundbreaking, as it introduced the concept of accessibility for people with disabilities into federally funded programs and activities, essentially stating that people with disabilities should be treated the same as those without disabilities.

Section 504 was modeled after earlier civil rights laws, such as Title VI of the Civil Rights Act of 1964, which prohibited discrimination based on race, color, or national origin in federally funded programs. By extending civil rights protections to people with disabilities, Section 504 marked a turning point in the disability rights movement.

While the law was passed in 1973, its implementation was delayed for several years due to opposition from various government agencies. It wasn't until a series of protests by disability rights activists, including the historic 504 Sit-ins in 1977, that regulations enforcing Section 504 were issued by the U.S. Department of Health, Education, and Welfare.

Crip Camp

If you want to learn more about the sit-ins that were responsible for the federal government finally issuing regulations under Section 504, I highly recommend the documentary Crip Camp. Crip Camp, released in 2020, is maybe the only documentary that tries to tell the story of the civil rights movement of those of us with disabilities from our perspectives. If you know of another documentary I should watch that tells our story largely in our voices, please let me know.

Definition of a Qualified Individual with a Disability

Under Section 504, a person with a disability is defined as any individual who:

Has a physical or mental impairment that substantially limits one or more major life activities

Has a record of such an impairment, or

Is regarded as having such an impairment.

If the three-prong definition of a person with a disability under Section 504 sounds familiar, it should. The ADA and Section 504 both define a person with a disability the same way.

A “qualified” person with a disability is someone who meets the essential eligibility requirements for the receipt of services or participation in programs or activities. This means those of us with disabilities must be qualified to participate in the specific program or activity, regardless of our disability. Still, reasonable accommodations must be made to ensure we are not excluded from programs due to our disability.

Example

A nonprofit receives federal funding to run a program of adult swimming lessons. Since the nonprofit has accepted federal money to provide the swimming lessons, the swimming lessons are covered by Section 504.

In developing the swimming lessons, the nonprofit restricts access to the lessons to those who can get in and out of the pool independently.

A person who walks with crutches but has the ability to move their body with their arms registers for swimming lessons. When they arrive for their first lesson, the nonprofit tells them that in order to qualify for swimming lessons, students must be able to independently get in and out of the pool.

The nonprofit is violating the disabled person’s rights under Section 504 if the disabled person can prove they can effectively learn to swim with their limited mobility. As long as the disabled person can swim, inaccessibility (like pools not equipped with lifts) cannot be used as a reason for excluding the disabled person from the swimming lessons. This is because the ability to independently access and leave the pool may not be directly related to the ability to swim.

In order for a person with a disability to be excluded, the qualifications for participation must be directly related to the abilities necessary to effectively participate.

Bonus points to those of you who remember that the disabled swimmer in this example would also have rights under Title III of the ADA.

Comparison with the Americans with Disabilities Act (ADA)

While Section 504 and the Americans with Disabilities Act (ADA) both aim to prevent discrimination against those of us with disabilities, there are key differences between the two laws.

Scope of Coverage

Section 504 applies only to programs and activities that receive federal financial assistance. This includes public schools, universities, hospitals, and any other institutions funded by federal dollars.

The ADA, passed in 1990, is broader in scope. It covers employment (Title I), state and local government services (Title II), public accommodations (businesses and nonprofits) (Title III), and telecommunications (Title IV). Entities covered by the ADA are covered by the ADA whether they receive federal funds or not.

Enforcement

Section 504

Section 504 is enforced through the agency that provides federal financial assistance to the program or institution in question. Compliance is monitored by the individual agencies with enforcement power under Section 504, and failure to comply can result in the loss of federal funding.

Example

A hospital receives federal money from the Department of Health and Human Services to assist with the funding of its daily operations. By accepting the federal money, the hospital becomes responsible to comply with the Section 504 regulations adopted by the Department of Health and Human Services.

Agencies with Enforcement Power Under Section 504

Enforcement of Section 504 is carried out by various federal agencies, depending on the specific program or institution involved. Some key agencies responsible for enforcing Section 504 include:1. Department of Education (Office for Civil Rights, OCR): Responsible for ensuring that public schools, colleges, and universities that receive federal funding do not discriminate against students with disabilities.

Department of Health and Human Services (HHS): Enforces Section 504 in programs such as hospitals, clinics, and social services that receive federal funding.

Department of Labor (DOL): Enforces compliance in employment and training programs that receive federal funds, ensuring that people with disabilities have equal access to vocational services and employment opportunities.4. Department of Transportation (DOT): Ensures that federally funded transportation services, such as public transit systems, do not discriminate against individuals with disabilities.

Department of Housing and Urban Development (HUD): Enforces Section 504 in federally funded housing programs to ensure that people with disabilities have access to fair and equal housing opportunities.

Each of these agencies has the authority to investigate complaints, ensure compliance, and impose corrective actions or sanctions, including the withdrawal of federal funds if necessary.

The ADA

Depending on the facts of a case, many federal agencies can technically enforce the ADA. But the ADA is primarily enforced by the Department of Justice. The most notable exception is that the Equal Employment Opportunity Commission (EEOC) overse

Disclaimer

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.

Introduction

In this episode, I am covering how disabled parents can advocate for their rights to be accommodated by the schools of their children. Since public schools are covered by Title II of the Americans with Disabilities Act (Title II) and private schools, except most religious schools, are covered by Title III of the Americans with Disabilities Act (Title III) I will briefly recap important concepts under both title II and Title III.

For more information about Titles II and III respectively, please visit the pages entitled ADA Title II Information and ADA Title III Information. Links to both pages will be in the episode notes when this episode is posted to the Demand Our Access website. Additionally, you may also want to review the episode called Effective Communication under Titles II and III. That, too, will be linked in this episode when it is posted to the website.

If you have any comments or questions, please use the contact form on the Demand Our Access website, or email me at [email protected].

Recapping Titles II and III

For those of you who heard the episode Advocating for Our Rights under Title II and/or heard the episode Advocating for Our Rights Under Title III, the review materials here will not be new. I have included them here, though, so if someone needs what I believe is the most important information to advocate for their rights as a disabled parent, all of that information will be in one place.

Recapping Title II

Since this is only a recap of our rights under Title II, I have chosen to cover only accommodations and modifications under Title II and effective communication under Title II. I have chosen these two topics because requests for accommodation and/or modification are how we get our rights under Title II and most requests for accommodation made under Title II relate to effective communication.

Requests for Accommodation or Modification

Requests for Modification

I'm beginning with a discussion of modifications because they are more straightforward. When you request a modification, you are requesting a state or local government modify an existing policy, practice, or procedure to enable you as a disabled person to participate. Here are some examples of when you may need to request the modification of a policy, practice, or procedure from a state or local government:

If a city has a policy that electric vehicles are not allowed in a park, someone using an assistive mobility device would have the right to have the policy modified so they can use their wheelchair in the park.

If a state has a policy banning all animals from a museum, the handler of a service animal would need to request a modification to that policy allowing service animals to enter the museum.

If a county has a policy requiring paper applications be completed by someone needing benefits, people with any number of disabilities would have the ability to request the policy be modified.

Requests for Accommodation

Requests for accommodation cover anything that does not involve the modification of a policy, practice, or procedure. Here are some examples of accommodations:

If someone requests a sign language interpreter, they are requesting an accommodation.

If someone requests an accessible electronic document, they are requesting an accommodation.

If someone requests assistance in completing a print form, they are requesting an accommodation.

If someone requests a public meeting be moved to a more accessible facility, they are requesting an accommodation.

An Important Note on Modifications and Accommodations

There may be circumstances when you need to request both a modification and an accommodation; for example, if a county does require the completion of a print form for someone to access benefits, a person with a disability may both choose to request a modification to the policy to ensure the county stops discriminating against people with disabilities. The person would then need to request an accommodation to ensure they can complete the inaccessible print form while the policy is being modified.

Effective Communication

I have included effective communication under Title II, but you must remember the effective communication requirement also applies to entities covered by Title III. To keep this simple, I have written this section so that it only applies to Title II; however, I have included the biggest difference between effective communication under Title II and effective communication under Title III.

The effective communication requirement is designed to ensure communication between state and local governments and people with disabilities is as effective for those of us with disabilities as it is for people without disabilities. Specifically, the law requires that we must be able to:

Communicate with state and local governments

Receive information from state and local governments

Convey information to state and local governments

That means that all information made available to the public is to be accessible to those of us with disabilities. All methods of accepting community feedback used by state and local governments must be accessible to us.

Auxiliary Aids and Services

What the ADA calls auxiliary aids and services (aids and services) are tools and/or assistance enabling those of us with disabilities to effectively communicate. The effectiveness of provided aids and services depends on our individual disabilities and the ways we individually choose to communicate. Examples of aids and services include but are not limited to the following:

Providing a blind person an accessible electronic document

Ensuring an online form is accessible to assistive technologies

Providing a Deaf person a sign language interpreter

Assisting someone with a mobility disability in completing a print form

Primary Consideration

One of the big differences between Title II and Title III is that state and local governments must give "primary consideration" to our requested methods of communication. This means the state or local government must honor our requested method of communication unless it can provide an equally effective method of communication or it can demonstrate that our requested method of communication would result in a fundamental alteration or an undue burden.

I'm not going to discuss fundamental alterations and undue burdens here. If a school attempts to deny your request for effective communication, whether the school is covered by Title II or Title III, review the episode called Effective Communication Under Titles II and III for additional information.

Companions

People described by the law as companions also have rights. Typically, the issue of a so-called companion needing an accommodation under Title II arises when a parent with a disability needs to communicate with a state or local government on behalf of their child. The right of disabled parents to be accommodated holds whether the parent is individually accessing the particular activity, program, or service or if the child is accessing the activity, program, or service on their own; for example, if a blind parent wishes to register their five-year-old daughter for swimming lessons the registration process must be accessible whether the child has a disability or not.

No Surcharges

In finishing our recap of effective communication under Title II, I need to remind you that a state or local government cannot charge you for the provision of any aid or service. The cost of ensuring effective communication is entirely the responsibility of the state or local government.

Recapping Title III

Since this is intended to be a brief recap of Title III, I am going to focus on which entities are covered by Title III and provide a quick reminder about surcharges. I have made the entities covered by Title III the focus of this brief review, because you need to understand which entities are covered by Title III prior to contacting a particular entity to advocate for rights.

Coverage

General Provisions

Title III covers:

Places of public accommodation

Commercial facilities

Examination and courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade, purposes

Title III also covers private entities primarily engaged in transporting people, but those regulations are produced by the Department of Transportation and will not be discussed in this episode.

Public Accommodations

The whole range of Title III requirements apply to entities the Department of Justice calls public accommodations. In order to be considered a public accommodation an entity must be private and it must own, lease, lease to, or operate a place of public accommodation.

Defining a Place of Public Accommodation

A place of public accommodation is a facility whose operations:

Affect commerce

And fall within one of 12 categories.

For our purposes, we are interested in the places of education category. The Department of Justice's description of the places of education category says the following:

Places of education include nursery schools, elementary, secondary, undergraduate, or postgraduate private schools.

Commercial Landlords and Tenants

Both landlords and tenants are responsible for following Title III. But the law allows landlords and tenants to contractually determine their rights and responsibilities under Title III. That being said,...

Disclaimer

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.

Advocating for Our Rights Under Title III

Introduction

As a refresher, Title III of the Americans with Disabilities Act (Title III) applies to businesses and nonprofits. In this episode, I will briefly recap important concepts under Title III. I will then discuss the steps I take when I need to advocate with a business or a nonprofit under Title III. I will also include a sample writing you can use when you need to advocate under Title III. Although the sample I am including will be intended to be written, if you are more comfortable talking to someone about your rights under Title III, the sample text I have included could be used as talking points for you in a discussion that takes place over the phone or in-person.

As always, I will include important links when this episode is posted to the Demand Our Access website.

If you have any questions or comments about this episode, you can feel free to reach me through the contact form at the Demand Our Access website, or you can email me at [email protected].

Recapping Title III

Since this is intended to be a vrief recap of Title III, I am going to focus on which entities are covered by Title III and provide a quick reminder about surcharges. I have made the entities covered by Title III the focus of this brief review, because you need to understand which entities are covered by Title III prior to contacting a particular entity to advocate for rights.

If you want to learn more about Title III, please check out Basics Under Title III and Basic Under Title III continued.

Coverage

General Provisions

Title III covers:

Places of public accommodation

Commercial facilities

Examination and courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade, purposes

Title III also covers private entities primarily engaged in transporting people, but those regulations are produced by the Department of Transportation and will not be discussed in this episode.

Public Accommodations

The whole range of Title III requirements apply to entities the Department of Justice calls public accommodations. In order to be considered a public accommodation an entity must be private and it must own, lease, lease to, or operate a place of public accommodation.

Defining a Place of Public Accommodation

A place of public accommodation is a facility whose operations:

Affect commerce

And fall within one of the following 12 categories:

Places of lodging (e.g., inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms

Establishments serving food or drink (e.g., restaurants and bars

Places of exhibition or entertainment (e.g., motion picture houses, theaters, concert halls, stadiums

Places of public gathering (e.g., auditoriums, convention centers, lecture halls

Sales or rental establishments (e.g., bakeries, grocery stores, hardware stores, shopping centers

Service establishments (e.g., laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals

Public transportation terminals, depots, or stations (not including facilities relating to air transportation

Places of public display or collection (e.g., museums, libraries, galleries

Places of recreation (e.g., parks, zoos, amusement parks

Places of education (e.g., nursery schools, elementary, secondary, undergraduate, or postgraduate private schools

Social service center establishments (e.g., day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies

Places of exercise or recreation (e.g., gymnasiums, health spas, bowling alleys, golf courses

In order to be a place of public accommodation, a business does not need to be expressly named in the above list; rather, it needs to fall within one of the 12 categories listed above. So, a sporting goods store is a place of accommodation under the sales and rentals category even though sporting goods stores aren't directly mentioned in the above list of places of public accommodation.

Commercial Landlords and Tenants

Both landlords and tenants are responsible for following Title III. But the law allows landlords and tenants to contractually determine their rights and responsibilities under Title III. That being said, if your rights under Title III are violated, you could, depending on the facts, sue either the landlord or the tenant and let them fight over who will pay.

Religious Institutions

Religious entities are exempt from the provisions of Title III. A religious entity under Title III is defined as "a religious organization or an entity controlled by a religious organization, including a place of worship." The exemption covers all of a religious organizations, activities whether they are religious or secular.

Examples

A religious institution runs a private school for members and nonmembers. Even though private schools are generally covered by Title III, the religious institution's private school does not have to follow Title III.

If a religious organization rents space for someone else to run a private school, the religious institution, as a landlord, has no responsibility under Title III. But the private organization running the private school would be subject to the requirements of Title III.

If a religious institution donates space on its property to be used as a private school, neither the religious institution nor the private group using the donated space to run a private school is covered by Title III.

The examples show that the only way a private organization that is not a religious institution can be subject to Title III is if the private organization rents or leases space from the religious institution.

Private Clubs

Strictly private clubs aren't covered by Title III. Courts typically use the following five factors when determining whether a club is private and thus exempt from the provisions of Title III:

Members exercise a high degree of control over club activities

The member selection process is very selective

Substantial membership fees are charged

The entity operates as a nonprofit

The club was not founded to avoid federal civil rights laws

Facilities of a private club lose their exempt status to the extent they are made available to the public.

Example

A private country club rents to a private organization to run a day care center from its facility. The day care center accepts students whose families are members of the country club and from families who aren't members of the country club. By allowing nonmembers of the country club to use the day care center, the private club has lost its Title III exemption for the portion of its facility used as a day care center.

State and Local Governments Under Title III

State and local governments aren't subject to the provisions of Title III. As we saw in the episode called "Title II Basics" state and local governments are covered by Title II of the ADA. The reason I'm mentioning this in an episode about Title III is that facilities and programs can be subject to the requirements of Titles II and III.

Examples

A state's parks department provides a restaurant in one of its parks. The state parks department contracts with a private corporation to manage the restaurant.

Even though the parks department is not directly managing the restaurant, it is required to ensure that the restaurant complies with all of the relevant provisions of Title II. The corporation managing the restaurant is required to follow the provisions of Title III.

A city owns an office building. It rents the first floor of the building as commercial space to a restaurant, news stand, and an office supply store.

The entire building, because it's owned by a city, is subject to the requirements of Title II. This means that the city, as a landlord, is required to ensure all of the commercial activities taking place on the first floor live up to the city's responsibilities under Title II.

A state and a private corporation enter into a joint venture to build a football stadium. The stadium is subject to the requirements of Titles II and III. To the extent that there is a difference in what is required as the stadium is constructed, the joint venture must use the requirement that would provide the most accessibility, whether the standard is found under Title II or III.

Surcharges

A public accommodation may not place a surcharge only on people with disabilities to cover the cost of accommodating them.

Advocating for Our Rights Under Title III

For those of you who listened to the episode on Advocating for Our Rights Under Title II, some of this will sound familiar. This is because to advocate for Our

rights Under Title III, we will use the same three steps we use when we advocate for our rights Under Title II. Although the steps for advocating under Titles II and III are the same, the language we will use and the rights we have are a bit different. The three steps to advocate for our rights are as follows:

Decide who to contact

Prepare what to say

Once your request is submitted

Decide Who to Contact

Deciding who to contact when you need to request an accommodation and/or modification from a business or a nonprofit can be difficult....

Disclaimer

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.

Introduction

In this episode, I am discussing paratransit. This episode will cover only topics related to how paratransit affects people with disabilities. I will not be covering any of the requirements that assist local governments in implementing their paratransit program.

The information related to paratransit has been codified by the Department of Transportation (DOT) in 49 C.F.R § 37.121.133. The link in the episode notes goes to 37.121. You can use the Next button to navigate to each subsequent section. Alternatively, you can access the entirety of 49 C.F.R. § 37. If you access part 37, the sections related to paratransit are set forth in subsection F. The subsections are at the heading two level. So, you can find subsection F by navigating the page by the heading level two.

Important Definitions

The important definitions are set forth in 49 C.F.R. §37.3. Note, the definitions set forth in subsection 37.3 apply to the whole of part 37 (not just the paratransit requirements).

I have included the link so you can check out the definitions on your own. If you want to learn more about terms I have not defined here, the definitions section is the place to go.

Here are what I believe to be the important definitions related to paratransit. To make this easier to follow I have chosen to edit and/or summarize the definitions:

Paratransit means comparable transportation service required by the ADA for individuals with disabilities who are unable to use fixed route transportation

systems.

A fixed route system is your local bus or train service that operates on a fixed schedule and has fixed routes.

Commuter bus, commuter rail, or intercity rail systems are not fixed route systems.

Oregin-to-destination means providing service from the place where a passenger is picked up and transporting them to their destination.

Paratransit may be provided as either a curb-to-curb service or a door-to-door service. The choice is made by your local paratransit provider.

When a paratransit provider chooses curb-to-curb service, it must generally provide additional assistance to passengers who need assistance beyond the curb to use paratransit.

Nondiscrimination

The nondiscrimination provisions are set forth in 49 C.F.R. § 37.5. I will cover two of them here:

If paratransit is provided, you cannot be required to use it if you choose to use regular public transit.

You cannot be required to be accompanied by an attendant.

Paratransit

Paratransit Eligibility

The specific eligibility requirements related to paratransit are set forth in 49 C.F.R. § 37.123(e). I am not going to reproduce those here, because I suspect most people listening are eligible for paratransit. But there are a few things related to paratransit eligibility I want to mention:

If an individual meets the eligibility criteria with respect to some trips but not others, the individual shall be paratransit eligible only for those trips for which they meet the criteria.

A personn eligible for paratransit service can typically only take one additional person with them.

If a person eligible for paratransit service has a personal care attendant, they can take their personal care attendant and one other person on the trip.

A family member or friend traveling with a person eligible for paratransit service is not considered a personal care attendant unless they register as a personal care attendant.

Additional individuals accompanying the paratransit eligible individual shall be provided service, provided that space is available for them on the paratransit vehicle carrying the paratransit eligible individual and that transportation of the additional individuals will not result in a denial of service to paratransit eligible individuals.

In order to be considered "accompanying" someone who is eligible for paratransit service, the other individual(s) must be picked up and dropped off at the same place as the person who is eligible for paratransit service.

The Process for Paratransit Eligibility

Here are things to know about the process entities must use to determine paratransit eligibility:

All information about the process, materials necessary to apply for eligibility, and notices and determinations concerning eligibility shall be made

available in accessible formats upon request.

If a decision has not been made within 21 days of an application being completed, the applicant shall be treated as eligible for paratransit service until or unless the application is denied.

A determination regarding eligibility must be communicated in writing. If the application is denied, reasons for the denial must be provided.

When someone is eligible for paratransit they shall be provided documentation stating that they are “ADA Paratransit Eligible.” The documentation shall include the name of the eligible individual, the name of the transit provider, the telephone number of the entity's paratransit coordinator, an expiration date for eligibility, and any conditions or limitations on the individual's eligibility including the use of a personal care attendant.

Recertification for paratransit eligibility may be required at "reasonable intervals."

Providers of paratransit are required to establish an appeals process for situations when a determination has been made that someone is not eligible for paratransit.

They can require that an appeal be filed within 60 days of a determination that someone is not eligible for paratransit.

The process shall include an opportunity to be heard and to present information and arguments, separation of functions (i.e., a decision by a person

not involved with the initial decision to deny eligibility), and written notification of the decision, and the reasons for it.

The entity is not required to provide paratransit service to the individual pending the determination on appeal; however, if the entity has not made

a decision within 30 days of the completion of the appeal process, the entity shall provide paratransit service from that time until and unless a decision

to deny the appeal is issued.

Suspension of Service

Providers of paratransit may establish an administrative process to suspend, for a reasonable period of time, the provision of complementary paratransit service to individuals who establish a pattern or practice of missing scheduled trips. Trips missed by the individual for reasons beyond their control (including, but not limited to, trips which are missed due to operator error) shall not be a basis for determining that such a pattern or practice exists.

Before suspending service, an entity must do the following:

Notify the individual in writing that the entity proposes to suspend service, citing with specificity the basis of the proposed suspension and setting

forth the proposed sanction.

Provide the individual an opportunity to be heard and to present information and arguments.

Provide the individual with written notification of the decision and the reasons for it.

The appeals process described above is available to people whose service has been suspended.

Any sanctions imposed cannot be enforced until the appeals process has been completed.

Personal Care Attendants

An entity can require you to indicate whether or not you use a personal care attendant in the application process.

Complementary Paratransit Service for Visitors

Each entity required to provide paratransit service shall make it available to visitors to their area.

A visitor is an individual with disabilities who does not reside in the jurisdiction(s) served by the public entity or other entities with which the public entity provides coordinated complementary paratransit service within a region.

Each public entity shall treat as eligible for its complementary paratransit service all visitors who present documentation that they are eligible for paratransit somewhere else.

With respect to visitors with disabilities who do not present such documentation, the public entity may require the documentation of the individual's place of residence and, if the individual's disability is not apparent, of their disability.

The public entity shall accept a certification from the person with a disability that they cannot use fixed route services.

If you are using paratransit service as a visitor, you only qualify for 21 days of service during any 365-day period.

An entity cannot make visitors certify for their service before providing service.

Service Criteria

The service criteria are set forth in 49 C.F.R § 37.131. I am not going to cover all of the service criteria because I do not believe they are relevant to most situations. But I will cover what I think are the most important service criteria.

Service Area

For bus systems, the general rule is that the place where someone is picked up and the place where they are dropped off must both be within 3/4 of a mile of a bus stop.

For rail systems, the service area shall consist of a circle with a radius of 3⁄4 of a mile around each station. At end stations and other stations in outlying areas, the entity may designate circles with radii of up to 11⁄2 miles as part of its service area, based on local circumstances.

Response Times

The entity shall schedule and provide paratransit service to any paratransit eligible person at any requested time on a particular

day in response to a request for service made the previous day. Reservations may be taken by reservation agents or by mechanical means.

...

Disclaimer

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.

Introduction

In the nearly two years I have been working on the Demand Our Access Project, I have covered many different aspects of the law. As I have repeatedly said, I am doing the Demand Our Access project because I strongly believe the best way for those of us with disabilities to achieve more equitable outcomes in society is for us to understand and enforce the legal rights we have. So, it's time for us to spend dedicated time discussing how to advocate for ourselves and our community by using the lega rights we do have to achieve better outcomes for us as individuals and for our community as a whole.

This episode will be the first in a series of episodes where we discuss how to effectively advocate for better outcomes by using the legal rights we have covered in the previous episodes of Demand Our Access. Our first episode on advocating for our rights will cover state and local governments. Specifically, I'm going to go through the steps I take when I need to advocate for my civil rights with my state or local government.

We are starting with state and local governments for three reasons:

Those of us with disabilities have more protections when we face discrimination from a state or local government than we have when we face discrimination by a corporation.

State and local governments are covered by Title II of the ADA (Title II), which was the first substantive topic I presented through the Demand Our Access project.

Many in our community rely on state and local governments for critical services in ways they do not need to rely on corporations.

Since basics under Title II of the ADA was covered nearly two years ago and because that episode didn't expressly discuss accommodations and modifications under Title II, I'm going to briefly recap some of the rights afforded us under Title II. Then, I will move into the ways I advocate under Title II. I will include a sample request that I hope helps you understand how to make a request of a state or local government under Title II.

Recapping Title II

Since this is only a recap of our rights under Title II, I have chosen to cover only accommodations and modifications under Title II and effective communication under Title II. I have chosen these two topics because requests for accommodation and/or modification are how we get our rights under Title II and most requests for accommodation made under Title II relate to effective communication.

This recap of our rights under Title II will not provide any citations to the law or Department of Justice guidance. To learn more about Title II, please check out the episode Title II Basics.

Requests for Accommodation or Modification

In putting together the Basics Under Title II episode, I decided not to cover requests for accommodation or modification. At the time, I believed people knew they had a right to request things of their local governments, and I didn't want to make the episode any longer than it was already. Nearly two years later, I now believe that I need to provide people more exact language when helping them learn to get their rights met by state and local governments. The reason for my change of heart is simple: I have come to realize that the more knowledgeable you sound in your request the more likely you are to have your request effectively addressed.

Requests for Modification

I'm beginning with a discussion of modifications because they are more straightforward. When you request a modification, you are requesting a state or local government modify an existing policy, practice, or procedure to enable you as a disabled person to participate. Here are some examples of when you may need to request the modification of a policy, practice, or procedure from a state or local government:

If a city has a policy that electric vehicles are not allowed in a park, someone using an assistive mobility device would have the right to have the policy modified so they can use their wheelchair in the park.

If a state has a policy banning all animals from a museum, the handler of a service animal would need to request a modification to that policy allowing service animals to enter the museum.

If a county has a policy requiring paper applications be completed by someone needing benefits, people with any number of disabilities would have the ability to request the policy be modified.

Requests for Accommodation

Requests for accommodation cover anything that does not involve the modification of a policy, practice, or procedure. Here are some examples of accommodations:

If someone requests a sign language interpreter, they are requesting an accommodation.

If someone requests an accessible electronic document, they are requesting an accommodation.

If someone requests assistance in completing a print form, they are requesting an accommodation.

If someone requests a public meeting be moved to a more accessible facility, they are requesting an accommodation.

An Important Note on Modifications and Accommodations

There may be circumstances when you need to request both a modification and an accommodation; for example, if a county does require the completion of a print form for someone to access benefits, a person with a disability may both choose to request a modification to the policy to ensure the county stops discriminating against people with disabilities. The person would then need to request an accommodation to ensure they can complete the inaccessible print form while the policy is being modified.

Effective Communication

I'm not going to cover everything under the effective communication requirement here. For more information about the effective communication requirement, please check out the episode Effective Communication Under Titles II and III of the ADA.

The effective communication requirement is designed to ensure communication between state and local governments and people with disabilities is as effective for those of us with disabilities as it is for people without disabilities. Specifically, the law requires that we must be able to:

Communicate with state and local governments

Receive information from state and local governments

Convey information to state and local governments

That means that all information made available to the public is to be accessible to those of us with disabilities. All methods of accepting community feedback used by state and local governments must be accessible to us.

Auxiliary Aids and Services

What the ADA calls auxiliary aids and services (aids and services) are tools and/or assistance enabling those of us with disabilities to effectively communicate. The effectiveness of provided aids and services depends on our individual disabilities and the ways we individually choose to communicate. Examples of aids and services include but are not limited to the following:

Providing a blind person an accessible electronic document

Ensuring an online form is accessible to assistive technologies

Providing a Deaf person a sign language interpreter

Assisting someone with a mobility disability in completing a print form

Primary Consideration

One of the big differences between Title II and Title III, covering primarily corporations and nonprofits, is that state and local governments must give "primary consideration" to our requested methods of communication. This means the state or local government must honor our requested method of communication unless it can provide an equally effective method of communication or it can demonstrate that our requested method of communication would result in a fundamental alteration or an undue burden.

I'm not going to discuss fundamental alterations and undue burdens here, because it is very unlikely that a state or local government would be able to prove that a requested method of communication would result in a fundamental alteration or undue burden. For our purposes, all you need to know is that in almost every instance a state and local government must communicate with you in the ways you desire to have them communicate with you.

Companions

People described by the law as companions also have rights. Typically, the issue of a so-called companion needing an accommodation under Title II arises when a parent with a disability needs to communicate with a state or local government on behalf of their child. The right of disabled parents to be accommodated holds whether the parent is individually accessing the particular activity, program, or service or if the child is accessing the activity, program, or service on their own; for example, if a blind parent wishes to register their five-year-old daughter for swimming lessons the registration process must be accessible whether the child has a disability or not.

No Surcharges

In finishing our recap of effective communication under Title II, I need to remind you that a state or local government cannot charge you for the provision of any aid or service. The cost of ensuring effective communication is entirely the responsibility of the state or local government.

Advocating Under Title II

Here are the steps I follow when I need to advocate with a state or local government for an accommodation and/or modification under Title II.

Decide who to Contact

Sadly, this step, depending on how much your local government is doing to follow Title II, will be relatively easy or extremely difficult. Some communities clearly list their ADA coordinator on their website....

Disclaimer

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 or financial advice. Applying the law and/or determining investment strategies depends on the circumstances and events that comprise every situation. Since legal and/or financial advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal and/or financial advice.

ABLE Accounts

The Stephen Beck Jr. Achieving a Better Life Experience Act (ABLE Act) allows people with qualifying disabilities to establish tax-free financial accounts. I'm going to answer the questions I had about ABLE accounts when I began researching them. When I discovered what I am going to share with you, I couldn't wait to create my own ABLE account.

I will take the questions in the order I believe makes the most sense. If you have any comments about ABLE accounts, feel free to contact me at [email protected] or fill out the contact form on the Demand Our Access website.

How do ABLE accounts affect Social Security Supplemental Income (SSI)?

The most important thing about ABLE accounts for recipients of SSI to know is that the amount contained in your ABLE account up to $100,000 is exempt from SSI's $2,000 asset limit. This means that a person on SSI can actually save some money and use ABLE account funds to pay qualifying expenses without being too concerned about an asset limit.

If the beneficiary is getting SSI, they can't have $100,000 in their ABLE account. If the value of an ABLE account reaches $100,000, the cash payments are stopped. As soon as the ABLE account is under $100,000, the beneficiary of the ABLE account can collect SSI payments without having to reapply for them.

If I have an ABLE account, will I lose Medicaid?

ABLE accounts (no matter how much they are worth) don't impact Medicaid eligibility. Even if SSI cash payments are suspended because an ABLE account hit $100,000, health care covered by Medicaid won't be lost.

Will an ABLE account impact SNAP benefits?

ABLE accounts are excluded from asset limits when someone applies for and/or gets SNAP benefits.

How are ABLE accounts funded?

Anyone can contribute to an ABLE account. Any money contributed to an ABLE account can't be deducted from the contributor's federal taxes. Some states do offer tax deductions for at least a portion if not the entire amount contributed to an ABLE account during the year.

How much can be ConTributed to an ABLE Account Each Year?

To keep this from getting too technical, I will tell you that generally the annual contribution to an ABLE account is limited to $18,000 for the 2024 calendar year. The amount that can be contributed annually is tied to the exclusion related to gift taxes. That means it will increase almost every year. The annual contribution limit covers every dollar contributed to the ABLE account during the year. So, if you contributed $10,000 of your own money and your mother contributed $8,000 your account would reach its annual $18,000 contribution limit for this year.

There is an exception to the annual contribution limit for those people who do not have retirement plans through their work. Since that's not a typical situation, I'm not covering it here. But you should be aware of the fact that if you do not have a retirement plan through work, you could contribute more to your ABLE account than the typical contribution limit.

How can funds withdrawn from ABLE accounts be spent?

Any funds withdrawn from an ABLE account must be spent on a qualified disability expense (QDE). Qualified disability expenses can be broken down into 12 broad categories:

Education

Housing

Transportation

Employment training and support

Assistive technology and related services

Health

Prevention and wellness

Financial management and administrative services

Legal fees

Expenses for ABLE account oversight and monitoring

Funeral and burial

Basic living expenses

Housing Expenses

Housing-related expenses that count as qualified disability expenses are broken down into nine broad categories:

Mortgage payments (including insurance required by the mortgage holder)

Property taxes

Rent

Heating fuel

Gas

Electricity

Water

Sewer

Garbage removal

If a withdrawal from an ABLE account is used to pay rent, the money withdrawn from the ABLE account must be paid toward rent in the month it was withdrawn from the account.

Are funds withdrawn from an ABLE account taxed?

As long as money withdrawn from an ABLE account is spent on a qualified disability expense, the withdrawn money passes to the beneficiary of the ABLE account free of federal income tax. Funds withdrawn from an ABLE account may be subject to state income taxes. Obviously, that depends on your state.

How often can funds be withdrawn from an ABLE account?

The frequency with which funds can be withdrawn from an ABLE account and any fees associated with withdrawing money from an ABLE account depend on the ABLE plan you choose.

Is there a limit on the amount of money that can be put in each ABLE account?

The amount of money you can have in an ABLE account depends on the plan you choose. As of this writing, the amount you can have in an ABLE account mostly ranges from $200,000 to $500,000. Remember, if the beneficiary of the account is getting SSI, their cash payments are suspended once their ABLE account reaches $100,000 in value.

What happens if an ABLE account reaches its value limit?

When an Able account hits its limit, the account remains active. The amount in the account can continue growing; however, the account will no longer accept contributions.

How does the value of an ABLE account increase?

If you want to grow the value of an ABLE account beyond the amount of money contributed to it plus any interest, you can choose from a menu of investment options. Depending on your risk tolerance, you can invest in a portfolio that is largely stocks or mostly bonds. The higher the amount of stocks in your portfolio, the greater the risk. The higher the percentage of stocks in your portfolio, the greater the growth potential.

How often can I change my investment strategy?

You can change your investment strategy twice during each calendar year.

How is eligibility for an ABLE account determined?

Before explaining the eligibility process, I want to make one thing perfectly clear: you do not need to prove disability status before opening an ABLE account. During the account creation process, you will be asked to answer questions designed to demonstrate that the beneficiary of the account was disabled prior to their 26th birthday. You will not need to provide any documentation.

Eligibility to establish an ABLE account has two parts: the disability must have been present prior to the beneficiary's 26th birthday; and the account beneficiary must have a qualifying disability.

The disability doesn't have to be diagnosed before the account beneficiary's 26th birthday. Nor does the account need to be opened before the beneficiary's 26th birthday. As long as it can be proven that the beneficiary of the ABLE account was disabled before their 26th birthday, the age requirement is satisfied.

There are several ways to establish the existence of a qualifying disability. The beneficiary must be eligible for SSI based on blindness or disability, entitled to Social Security disability benefits, childhood disability benefits, or disabled widow/widower benefits, or if disability is certified in writing by a medical professional.

Who can open an ABLE account?

In addition to a qualifying person with a disability, a parent, legal guardian, or someone with a power of attorney for a person with a qualifying disability can open an ABLE account.

What if the beneficiary can't make their own decisions?

When a person with a qualifying disability can't make their own decisions, a parent, legal guardian, or someone with a power of attorney can have signature authority over the account. The person with signature authority over the account can determine how the money should be invested, how often to change investment strategies, and more.

Who offers ABLE plans?

Every state has been granted the authority to create an ABLE program. As of this writing, just about every state offers ABLE programs, but many of them are pretty similar and are managed by the same few banks.

What if my state doesn't offer an ABLE plan?

Many of the states with ABLE programs allow people living in other states to open ABLE accounts. If your state doesn't offer an ABLE program, you can find a plan that meets your needs and is offered by a state that doesn't restrict membership to its citizens.

What should I consider when comparing ABLE plans?

The answer to this question depends on your personal circumstances. If the goal of the ABLE account is to save for something down the road, like buying a home, that is years away, you may want a plan that allows you to have more money in an ABLE account. If you are interested in using the ABLE account to grow your investment, you may want to consider the number and variety of investment options offered by the individual state plans.

How can I learn more about ABLE accounts?

The ABLE National Resource Center is a great place to learn more about ABLE accounts. On their website, you can: review the ABLE programs offered by the different states; compare up to three state programs simultaneously; access webinars about different aspects of the ABLE program; and more.

The Social Security Administration has an informative page dedicated to the ABLE program. One of the real benefits of the Social Security page is that it uses examples to help teach what is involved with ABLE accounts.

Conclusion

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Disclaimer

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.

Introduction

This is the second part of our two-part look at Title I of the Americans with Disabilities Act (Title I). In the first episode dedicated to Title I, I covered important definitions under Title I. Some of the concepts discussed in this episode may be easier to understand if you have some familiarization with the material from the previous episode. Still, you should learn importnat things from this episode even if you did not review the previous episode.

As I said last time, there is no way to cover this kind of material without using words like impaired that many of us in the disability community don't use. I'm using words like impaired here because those are the words used in the law.

Whether we like it or not, when communicating about the law we are required to use terms that are outdated. Maybe someday the ADA will be revisited and the updated law will provide for meaningful enforcement and will be written in modern language. For now, we have to discuss the law as it has been written.

Our discussion is based on the rules defining compliance with Title I as set forth by the Equal Employment Opportunity Commission (EEOC) in 29 C.F.R. § 29.1630. To make this presentation easier to follow, I'm not going to mention the exact citations to different sections of the Code of Federal Regulations. As always, I will link to the individual sections when this episode is posted to the Demand Our Access website.

In listening to the previous episode, I decided that the term "covered entity", while used in the Code of Federal Regulations, may be too confusing for people just learning about Title I. So, I have decided to replace the term "covered entity" with the term "employer". While I'm doing this to make the presentation easier to follow, it must be remembered that not all employers are covered by Title I; for example, if an employer employs fewer than 15 employees that employer is not covered by Title I.

Important Concepts Under Title I

Discrimination Prohibited

It is unlawful for an employer to discriminate on the basis of disability against a qualified individual in regard to the following:

Recruitment, advertising, and job application procedures

Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right of return from layoff and rehiring

Rates of pay or any other form of compensation and changes in compensation

Job assignments, job classifications, organizational structures, position descriptions, lines of progression, and seniority lists

Leaves of absence, sick leave, or any other leave

Fringe benefits available by virtue of employment, whether or not administered by the employer

Selection and financial support for training, including: apprenticeships, professional meetings, conferences and other related activities and selection for leaves of absence to pursue training

Activities sponsored by an employer, including social and recreational programs

Any other term, condition, or privilege of employment

The term discrimination includes but is not limited to the acts described in 29 C.F.R. § 1630.4 through 29 C.F.R. § 1630.13. Even though I won't mention those citations, I will now, hopefully, help you begin to become familiar with the types of disability discrimination discussed by the EEOC in those sections of the Code of Federal Regulations.

Limiting, Classifying, and Segregating

It is unlawful for an employer to limit, segregate, or classify a job applicant or employee in a way that adversely affects his or her employment opportunities or status on the basis of disability.

Contractual or Other Arrangements

It is unlawful for an employer to participate in a contractual or other arrangement or relationship that has the effect of subjecting the employer's own qualified applicant or employee with a disability to the discrimination prohibited by Title I.

Contractual or Other Relationship Defined

The phrase contractual or other arrangement or relationship includes, but is not limited to, a relationship with an employment or referral agency, labor union (including collective bargaining agreements), an organization providing fringe benefits to an employee of the employer, or an organization providing training and apprenticeship programs.

Application

This section applies to an employer, with respect to its own applicants or employees, whether the entity offered the contract or initiated the relationship, or whether the employer accepted the contract or acceded to the relationship. An employer is not liable for the actions of the other party or parties to the contract which only affect that other party's employees or applicants.

Standards, Criteria, or Methods of Administration

It is unlawful for an employer to use standards, criteria, or methods of administration, which are not job-related and consistent with business necessity, and that:

Have the effect of discriminating on the basis of disability

That perpetuate the discrimination of others who are subject to common administrative control

Relationship or Association with a Person with a Disability

It is unlawful for a covered entity to exclude or deny equal jobs or benefits to, or otherwise discriminate against, a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a family, business, social or other relationship or association.

Not Making Reasonable Accommodation

It is unlawful for an employer not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business.

It is unlawful for an employer to deny employment opportunities to an otherwise qualified job applicant or employee with a disability based on the need of such employer to make reasonable accommodation to such individual's physical or mental impairments.

An employer shall not be excused from the requirements of this part because of any failure to receive technical assistance authorized by section 507 of the ADA, including any failure in the development or dissemination of any technical assistance manual authorized by that Act.

An individual with a disability is not required to accept an accommodation, aid, service, opportunity, or benefit which such qualified individual chooses not to accept. However, if such individual rejects a reasonable accommodation, aid, service, opportunity, or benefit that is necessary to enable the individual to perform the essential functions of the position held or desired, and cannot, as a result of that rejection, perform the essential functions of the position, the individual will not be considered qualified.

An employer is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition of disability under the actual disability prong or the record of a disability prong under the definition of disability. Someone who is regarded as having a disability is not entitled to reasonable accommodations under Title I.

Qualification standards, tests, and Other Selection Criteria

It is unlawful for an employer to use qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities, on the basis of disability, unless the standard, test, or other selection criteria, as used by the employer, is shown to be job related for the position in question and is consistent with business necessity.

Qualification Standards and Tests Related to Uncorrected Vision

Not withstanding the typical rule that people whose vision can be corrected to the normal range through the use of standard eyeglasses and contact lenses are not covered by Title I, an employer shall not use qualification standards, employment tests, or other selection criteria based on an individual's uncorrected vision unless the standard, test, or other selection criteria, as used by the employer, is shown to be job related for the position in question and is consistent with business necessity. An individual challenging and employer's application of a qualification standard, test, or other criteria based on uncorrected vision need not be a person with a disability, but must be adversely affected by the application of the standard, test, or other criteria.

Administration of Tests

It is unlawful for an employer to fail to select and administer tests concerning employment in the most effective manner to ensure that, when a test is administered to a job applicant or employee who has a disability that impairs sensory, manual or speaking skills, the test results accurately reflect the skills, aptitude, or whatever other factor of the applicant or employee that the test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant (except where such skills are the factors that the test purports to measure).

Retaliation and Coercion

Retaliation

It is unlawful to discriminate against any individual because that individual has opposed any act or practice made unlawful by Title I or because that individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding,...

This episode is our first of at east two episodes dedicated to Title I of the Americans with Disabilities Act. Title I is critical to those of us with disabilities, because it covers employment.

This episode focuses on important definitions under Title I. Some of this will be review for those of you who reviewed the posts on Titles II and III.

Disclaimer

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.

Introduction

During the month of January I will be covering employment of people with disabilities. Specifically, I will be covering the Equal Employment Opportunity Commission' (EEOC) regulations describing what compliance with Title I of the Americans with Disabilities Act means. The rules on Title I compliance developed by the EEOC are set forth in 29 C.F.R. § 1630. To make this easier to follow, I'm not going to review all of the citations in this episode. As always, links to the information covered here will be provided on the Demand Our Access website in the show notes accompanying this episode.

Given the amount of information in Title I compliance, I have divided the material up so it fits in two episodes. I'm also hoping that by leaving some time in both episodes there will be enough time for questions and comments. If you are not participating in the live version, you can email me at [email protected] with any questions or comments you may have. You can also fill out the contact form at Demand Our Access.

Even though I don't like the word "impairment" the reality is it is used in the law and every publication about the law. So, it is not possible to produce a presentation about Title I that doesn't contain lots of uses of the word "impairment" and other words many of us with disabilities don't use.

I will not be covering every aspect of Title I. Specifically, I'm not going to cover things that largely or completely relate only to employers, drug abuse, and additional concepts that I don't believe are relevant to most people with disabilities.

Before getting into the material under Title I, I want to let you know that some of the material covered in this episode will be a review for those of you who have followed my presentations on Titles II and III. I'm repeating myself in areas like defining a disability so that people who have not reviewed the material on Titles II and III will get what they need from my coverage of Title I. That being said, I will be getting into concepts that are unique to Title I during this episode. If you have heard my presentations on titles II and III, there will be new information for you in this episode.

Title I

Important Things to Know

For an employer to be covered byTitle I, it must have at least 15 employees.

The United States government is not subject to the provisions of Title I; however, Section 501 of the Rehabilitation Act of 1973 provides similar protections for federal positions. Will be covering sections of the Rehabilitation Act later this year.

To be clear, state and local governments are covered by Title I. If you work or you are interested in working for a state or local government, what I am covering here applies to you.

Private membership clubs (excluding labor organizations) are not covered by Title I.

Religious institutions are covered by Title I. but they may give preference to people of their religion.

Members of the clergy and people perform essentially religious functions are excluded from the protections of Title I.

Individuals with Disabilities

Title I, like Titles II and III, protects three categories of individuals with disabilities:

Individuals who have a physical or mental impairment that substantially limits one or more major life activities

Individuals who have a record of a physical or mental impairment that substantially limited one or more of the individual's major life activities

Individuals who are regarded as having such an impairment, whether they have the impairment or not

Physical or Mental Impairment

Physical disabilities include:

Physiological disorders

Cosmetic disfigurement

Anatomical loss affecting one or more critical body systems

Mental disabilities include mental or psychological disorders, such as, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

I'm not going to list any of the qualifying disabilities listed in the law because the ADA Amendments Act. of 2008 requires broad coverage.

Substantial Limitation of a Major Life Activity

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. The consideration of whether a disability substantially limits a major life activity is not intended to require extensive analysis. The law is focussed on determining whether the employer violated the law and discriminated on the basis of disability.

Temporary Impairments

Temporary impairments are covered as long as 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. To be considered temporary, an impairment must be expected to last no longer than six months.

Mitigating Measures

In most instances, whether a person has a disability does not depend on their ability to limit the ways their condition substantially limits a major life activity. A person with severe hearing loss is considered disabled even though their hearing can be greatly improved through the use of a hearing aid. Someone whose epplepsey can be controlled through the use of medication is still considered disabled. The exception to this is the impact of ordinary eyeglasses and contact lenses on an individual's ability to see. If the use of eyeglasses and/or contact lenses improve someone's vision to the point where they are not considered low vision, they are not considered disabled under the law.

Record of a Substantial Impairment

A record of a Physical or Mental Impairment That Substantially Limited One or More Major Life Activity is covered by the ADA. This protected group includes:

A person who has a history of an impairment that substantially limited a major life activity but who has recovered from the impairment

People who have been misclassified as having an impairment

Regarded as Disabled

The ADA protects certain people when they are regarded as having a disability that substantially limits one or more major life activity when they do not. Typically, this happens under one of the following three situations:

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

An individual who has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward the impairment

An individual who has no impairments but who is treated by an employer as having an impairment.

Qualified Person with a Disability

A qualified person with a disability under Title I is someone who satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.

Essential Functions of a Job

Essential functions of a job are those that are fundamental job duties of the employment position the individual with a disability holds or desires. The term essential functions does not include the marginal functions of the position.

A job function may be considered essential for any of several reasons, including but not limited to the following:

The function may be essential because the reason the position exists is to perform that function

The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function

Evidence as to whether a particular function is essential includes but is not limited to the following:

The employer's judgment as to which functions are essential

Written job descriptions prepared before advertising or interviewing applicants for the job

The amount of time spent on the job performing the function

The consequences of not requiring the incumbent to perform the function

The terms of a collective bargaining agreement

The work experience of past incumbents in the job

The current work experience of incumbents in similar jobs

Reasonable Accommodation

The term reasonable accommodation means:

Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position.

Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable the individual with a disability who is qualified to perform the essential functions of the position.

...

In this episode I cover using Uber and Lyft with a disability. Although the focus of the episode is service animals, what is covered applies to other issues of disability discrimination too.

In this episode I demonstrate the Demand Our Access website to show people how to use it. I also recap our first year of Demand Our Access and look ahead to next year.

This episode was recorded live during the live broadcast done on ACB Media. This version has been lightly edited from what happened live to make it a bit easier to follow. None of the substance has been changed.