Demand Our Access

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.

Titles II and III

As a reminder, Title II of the ADA largely applies to state and local governments. So, all cities, counties, towns, multijurisdictional governmental bodies, and their agencies, bureaus, and departments are covered by Title II.

Title III applies to what the law calls places of public accommodation. For our purposes, we are talking about businesses and most nonprofits. So, restaurants, hotels, concert halls, sports arenas, stores, and rideshare companies are covered by Title III.

Introduction

Under Titles II and III of the Americans With Disabilities Act (ADA), covered entities are required to provide effective communication to people with disabilities.

Effective communication means communication between the covered entity and a person with a disability is as effective as is communication between the covered entity and a person who does not have a disability. The law expects that a person with a disability can: communicate with; receive information from; and convey information to covered entities.

The Department of Justice (DOJ) rule on effective communication focuses on people with visual, hearing, and speech disabilities. But issues of effective communication can also arise when communication involves people with learning disabilities that impact reading and/or writing.

Subsequent sections of this episode will provide the legal nuts and bolts of effective communication as applicable to entities covered by Titles II and III and outlined by DOJ.

The general aspects of compliance with the effective communication requirement under Title II are set forth in 28 C.F.R. § 35.160-164. The requirements for places of public accommodation to provide auxiliary aides and services under Title III are covered in 28 C.F.R § 36.303. The DOJ guide on effective communication under Titles II and III has a lot of resources on the responsibilities of covered entities to effectively communicate with people with disabilities.

The requirements to effectively communicate are very similar under both Titles II and III. So, the rest of this episode will largely be about how title II entities are supposed to effectively communicate with those of us with disabilities. Where the rules are different under Title III, I will mention those differences as we move through the material.

Requesting Alternative Methods of Communication

Under 28 C.F.R. § 35.106, Title II entities must notify people with disabilities of how they can request alternative methods of communication. This means every local government website must clearly present contact information for someone charged with granting accommodations to people with disabilities (including those related to effective communication). Usually, local governments satisfy the notice of rights requirement by adopting a meaningful access statement covering many forms of discrimination. Some entities will adopt a more specific notice of rights applying only to public rights under Title II. Also, every event notice should clearly designate which person on the event planning team will coordinate accommodations for the event and list that person’s contact information.

Title III entities are not required to provide notice as to how people with disabilities can request accommodations. This is a serious weakness in the ADA. I'm sure most of you know how hard it can be to get help when you go to a store or need service from a business.

Companions Covered by the ADA

In many instances, covered entities may communicate with a person the law calls a companion of the person needing their goods or services; for example, parents often talk with schools about the participation of children in school events. In cases like these, the parent, if they have a disability, is covered as a companion of their student. When a parent with a disability is talking with a school about their child's education, the disabled parent is entitled to reasonable accommodations.

I used this example, because I have seen several instances of schools telling parents they only need to accommodate students with disabilities. That is fundamentally wrong. All public schools are covered by Title II. Private schools, unless they are directly operated by religious institutions, are covered by Title III. If you are a disabled parent, you are in most cases covered as a companion of your child, and you have a right to accommodations. Do not allow your child's school to tell you they do not need to accommodate you. While you are not covered by your child's Individualized Education Plan (IEP), you are clearly covered under both Title II and Title III. .

Auxiliary aids and Services

Auxiliary aids and services describe ways of communicating with a person whose disability can make traditional methods of communication difficult in a world that is too often needlessly inaccessible. Things like sign language, captioning, braille, large print, reading someone a document, writing down information for someone, and (in some cases) paper and pencil can all be examples of auxiliary aids or services.

Qualified Assistance

When providing an auxiliary aid or service involves providing personal assistance, whether the assistance be provided by hiring someone or using staff, the assistance must be furnished by someone who is qualified to provide the needed assistance. A certified professional, such as someone certified in American Sign Language, may not be qualified to interpret in every situation. While certification is evidence of someone’s general skills, there are times when specialized skills are needed.

When you ask for a qualified reader, the reader must be able to read effectively, accurately, and impartially using any necessary specialized vocabulary.

A qualified sign language interpreter is someone who can interpret effectively, accurately, and impartially, both receptively (understanding what the person with a disability is saying) and expressively (having the skill needed to convey information back to that person using any specialized vocabulary).

The focus on an understanding of specialized vocabulary means the person providing the assistance must understand the subject matter in question. If you are completing medical forms, the person assisting you must understand the forms being completed and the material you are being asked about. If a sign language interpreter is provided, the interpreter must be familiar with the subject matter being discussed.

Use of Accompanying Adults or Children to Provide Assistance

All of us with communication disabilities have faced multiple situations where we need assistance completing forms, accessing information, and more when our ability to effectively communicate depends on the quality of the assistance we are provided. Sadly, way too many places have no policies for how to accommodate us. In many instances, we are asked if someone can do it for us. The most important thing to remember here is that the covered entity is required to provide qualified assistance. You do not need to have someone fill out the information presented on a clipboard. Even if someone gives you a ride, you can insist the provider have staff complete the inaccessible documentation with you. Just as important for you to remember is that you have a right to privacy. A provider cannot force you to give someone assisting you your contact information and/or confidential information in public settings where others can hear what you are saying.

To keep this simple, the guidance around relying on companions to provide effective communication will be written as if it applies only to situations where sign language is needed. Do not forget the guidance applies to all situations where someone may need qualified assistance (such as help completing forms) to ensure effective communication and they are accompanied by a companion. Covered entities can only rely on a companion to provide sign language in two situations:

In an emergency involving an imminent threat to the safety or welfare of an individual or the public, an adult or minor child accompanying a person may be relied upon to interpret or facilitate communication only when a qualified interpreter is not available.

In situations not involving an imminent threat, an adult accompanying someone who uses sign language may be relied on to interpret or facilitate communication when the individual requests it, the accompanying adult agrees, and reliance on the accompanying adult is appropriate under the circumstances. This exception does not apply to minor children.

In cases where there is no imminent threat, covered entities cannot rely on the companion to interpret when there is reason to doubt the companion’s impartiality or effectiveness.

Deciding on an Accommodation

When deciding on a requested auxiliary aid or service, Title II entities are required to give “primary consideration” to the requested auxiliary aid or service. This means entities covered by Title II must honor the request unless they can demonstrate that another equally effective method of communication is available,, providing the requested method of communication would result in a fundamental alteration, or providing the requested method of communication would result in undue administrative and financial burdens.

There is no primary consideration requirement under Title III. Instead, Title III entities are encouraged to consult with the person with a disability to discuss w

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, we will discuss service animals under Titles II and III of the Americans with Disabilities Act (ADA), and Title I of the Americans with Disabilities Act. We covered service animals under the Air Carrier Access Act in the episode titled About the Air Carrier Access Act. We will cover service animals under the Fair Housing Act when we discuss the Fair Housing Act.

Service Animals Under Titles II and III

The information covered in this section of the episode is based on two documents from the Department of Justice (DOJ). The document titled Service Animals has lots of information as to how Titles II and III cover service animals. The document titled FAQs About Service Animals and the ADA answers more than 30 questions you may have about service animals under Titles II and III.

Definition of a Service Animal

A service animal is defined as a dog that has been individually trained to do work or perform tasks for an individual with a disability. The task(s) performed by the dog must be directly related to the person’s disability.

Performing work and Doing Tasks

The dog must be trained to take a specific action when needed to assist the person with a disability. Examples of work or tasks service animals do include but are not limited to the following:

Guiding a blind person

Alerting a person with diabetes when their blood sugar is too low

Notifying someone with depression that it’s time for them to take their medication

Indicating to a person with epilepsy prior to the onset of a seizure and help them remain safe

Emotional Support Animals

Dogs providing strictly emotional support, comfort, therapy, or companionship are not considered service animals under Titles II and III. Some state and local governments have passed laws allowing emotional support animals into public places. If you have an emotional support animal, check with your local government to see if it has such a law and to find out what it allows and requires.

Psychiatric Service Animals

Although animals providing strictly emotional support are not covered under Titles II and III, service animals trained to do work or complete tasks related to a disability are covered under Titles II and III; for example, if an animal has been trained to understand when its handler is having anxiety, and to take certain action(s) to lessen the seriousness of the attack, the animal qualifies as a service animal under Titles II and III.

Training Service Animals

A person is not required to have their service animal trained by a professional organization.

Service animals in training, whether being trained by a private person or a professional organization, are not legally considered service animals.

Questions Covered Entities can Ask

When a covered entity has questions as to whether a particular dog qualifies as a service animal, it is only allowed to ask two questions:

Is the service animal required because of a disability?

What work or task has the dog been trained to perform?

They cannot ask for any documentation related to the dog, require that the dog demonstrate the task it has been trained to perform, or ask about the nature of your disability.

General Points

The ADA does not require service animals to wear a specific harness, vest, or ID tag.

The handler is responsible for caring for and supervising the service animal. This includes, feeding, toileting, grooming, and veterinary care.

Service animals are allowed in salad bars and other self-service food lines.

Service animals are allowed in communal food areas similar to those that may be found in dormitories or shelters.

Hotels cannot assign certain rooms to handlers of service animals. People with disabilities must have the same opportunity to reserve any room that could be reserved by someone without a disability.

Hotels cannot charge a cleaning fee for service animals; however, if a service animal damages a room, the hotel can charge for that damage.

A person with a disability may use more than one service animal at the same time. In those cases, both service animals are entitled to the same access. If the space in question (like a small crowded restaurant) cannot accommodate both service animals, the restaurant can ask that one service animal be left outside.

Hospitals must allow in-patients to keep their service animal in their room.

If a patient's medical condition prevents them from caring for their service animal, the hospital must allow them to make arrangements to have someone come to the hospital and care for the service animal.

If the patient is unable to care for their service animal and they cannot make other arrangements, the hospital is permitted to board the service animal for the duration of the patient's hospital stay.

Before placing a service animal in a boarding facility, the hospital must provide the patient the opportunity to make other arrangements.

Generally, service animals are allowed in ambulances if their handler is being transported.

If transporting the service animal in an ambulance would interfere with the ability of medical professionals to treat the individual, the medical professionals must make other arrangements to have the service animal transported to the hospital.

Certification and Registration

Covered entities may not require documentation proving a service animal has been certified, trained, or licensed as a service animal.

Documents you can buy online from individuals or organizations certifying your service animal are not legally valid and provide no legal protection.

Local animal control ordinances requiring dogs to be vaccinated apply to service animals.

Service animals are subject to local dog licensing and registration requirements.

Local governments cannot require you to register your service animal as a service animal.

Covered entities may offer voluntary registration programs for service animals, but they cannot force you to register your service animal.

Breeds of Dog

The ADA does not limit the breeds of dogs that can work as service animals.

A service animal, regardless of breed, has the same legal protections.

If a local government has a ban on certain breeds of dogs, those legal restrictions do not apply to service animals.

Direct Threat

Covered entities can deny service animals entrance if a specific service animal poses a direct threat to the health or safety of others.

If a service animal is denied entrance, the decision to deny entrance must be based on an objective assessment of the specific service animal's behavior or history.

Excluding Service Animals

The ADA does not require covered entities to modify policies, practices, or procedures if making certain modifications would “fundamentally alter” the nature of the goods, services, programs, or activities provided to the public. Nor does it overrule legitimate safety requirements. If admitting service animals would fundamentally alter the nature of a service or program, service animals may be prohibited. In addition, if a particular service animal is out of control and the handler does not take effective action to control it, or if it is not housebroken, that animal may be excluded. Examples of when allowing a service animal would "fundamentally alter" its activities, programs, and services include:

Service animals can be prohibited from swimming pools, but they must be allowed in the pool area.

Service animals can be prohibited from certain sections of zoos where the presence of service animals would be disruptive to the zoo animals.

If a dormitory reserves areas for people with allergies, service animals can be prevented from entering those areas.

Under Control

The ADA requires service animals to be under the control of their handler at all times.

This means the service animal must be harnessed, leashed, or tethered in public places unless these devices interfere with the service animal's ability to perform the work it has been trained to perform or the handler's disability prevents them from using those devices.

If the service animal cannot be physically tethered to its handler, the handler must maintain control through voice commands, hand signals, or other effective methods of communication that allow the handler to maintain control.

If a service animal must be off leash to do its job, but the handler's disability does not prevent them from using a harness, leash, or tether, the service animal must be tethered when it is not working.

Service animals cannot bark repeatedly. But if they bark once or they are provoked into a few barks they cannot be excluded.

If a service animal is out of control and the handler is demonstrating and inability to control the service animal, the service animal can be excluded.

Miscellaneous Provisions

Hotel guests are not permitted to leave their service animals in hotel rooms unattended.

Stores cannot require that you put your service animal in a basket or cart.

Places serving food are not required to allow you to feed your service animal at the table or allow it to sit at the table.

Places of worship are not required to allow service animals entrance because religious institutions are exempt from the ADA.

Federal agencies are not covered by the ADA, but they are covered by Section 504 of the Rehabilitation Act of 1973.

The ADA applies to public housing programs administered by local governments and to places of public accommodation such as public and private colleges and universities

n this episode, we are filing our first complaint. Join by Desiree Sturdevant, we file a complaint with the Department of Transportation under the Air Carrier Access Act against Alaska Airlines. This episode was recorded in two sessions. So, the audio levels are not quite the same.

About Me

This will be the last time I begin an episode with information about me. I'm sharing this information at the beginning of the first three episodes so you can learn a little about me and my qualifications to present on matters of disability law.

Basic Bio

I was born blind.

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

I live in Portland, Oregon.

Oregon is the fifth state I have called home.

My interests include:

I love animals.

I'm a huge sports fan.

I'm an avid reader and writer.

Certifications

I have a law license from Massachusetts.

I'm a certified ADA coordinator.

I'm a certified professional in accessibility.

Professional Background

I'm the disability analyst for Portland Parks & Recreation.

Previously, I was the ADA Title II analyst for the city of Portland.

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

Prior to that I was a staff attorney for what was then called the American Bar Association's Commission on Mental and Physical Disability Law in Washington, DC.

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.

Roadmap

In this episode we will be focusing on the following:

Airline Passengers with Disabilities Bill of Rights

Selected provisions of the Air Carrier Access Act

Introduction

This episode is designed to provide a good amount of knowledge of our rights as airline passengers with disabilities. It is not intended to address every requirement the airlines have to provide us, nor is it going to address every aspect of discrimination we may face as people with disabilities when we travel by air. My hope is that by providing this information I can help others in our community understand the rights we have, how to make those rights work for us when we can, and what changes to the law we should be demanding.

If you want more information about the topics presented here, or you think you may need information not presented here, the show notes accompanying this episode and posted to the website has links to all of the resources covered here. So, I wouldn't listen to this podcast expecting to take notes; rather, I would listen to gain an understanding of what is generally required. When you are planning a trip, or you are thinking about filing a complaint, use the website to access information applying to your specific situation.

Airline Passengers with Disabilities Bill of Rights

The Airline Passengers with Disabilities Bill of Rights (Bill of Rights) was developed by the Department of Transportation (DOT) as a cleaner way of explaining the rights promised people with disabilities in the Air Carrier Access Act (ACA). The Bill of rights makes the following 10 promises:

The right to be treated with dignity and respect

The right to receive information about airline services, and aircraft services, capabilities, and limitations

The right to receive information in an accessible format

The right to accessible airport facilities

The right to assistance at airports

The right to assistance on the aircraft

The right to travel with an assistive device or service animal

The right to seating accommodations

The right to accessible aircraft features

The right to resolution of a disability related issue

While the rest of this episode will cover provisions of the ACA, the Bill of Rights is a great place for you to begin learning about your rights under the ACA.

Selected Provisions of the ACA

Effective Communication

Website Accessibility

The accessibility of airline websites is discussed in 14 C.F.R. § 382.43. Some of its key provisions are as follows:

If an airline flies at least one plane with 60 or more seats, that airline's primary website had to be accessible by December 12, 2016.

If an airline's primary website is covered, it must comply with level AA of version 2.0 of the Web Content Accessibility Guidelines.

The pages on the primary websites were to be tested by people with disabilities and/or disability organizations for compliance with the Web Content Accessibility Guidelines and for the usability of the pages.

Consulting by the disability community was to be done prior to the scheduled dates for compliance.

There is no requirement for ongoing, organized testing of web pages.

If someone acknowledging their disability says they cannot access something on an airline's website, the airline needs to accommodate them in another way.

Airline websites must allow people with disabilities to request accommodations for future flights.

Information for Blind, Deaf or Hard of Hearing at Airports

The regulations related to people who are blind, deaf, or hard of hearing having access to information are addressed in 14 C.F.R. § 382.53.

US carriers must ensure People with disabilities have "prompt" access to the same information provided to other passengers at each gate, ticketing area, and customer service desk that an airline owns, leases, or controls at any US or foreign airport, to the extent that this does not interfere with employees' safety and security duties.

foreign carriers must make this information available at each gate, ticketing area, and customer service desk that they own, lease, or control at any US. airport.

At foreign airports, foreign carriers must make this information available only at gates, ticketing areas, or customer service desks they own, lease, or control and only for flights that begin or end in the US.

The information covered by this section includes, but is not limited to, the following:

flight safety information

ticketing

flight check-in

delays

cancelations

schedule changes

boarding information

connections

gate assignments

checked bags

volunteer solicitation when flights are oversold

individuals being paged by airlines

aircraft changes affecting the travel of people with disabilities

emergencies

Regarding checked bags, the information must be provided to people who are blind, deaf, or hard of hearing no later than it is provided to other passengers.

Accessible Kiosks

Information related to accessible automated kiosks at airports is covered in 14 C.F.R. § 382.57. Things to know about kiosk accessibility are as follows:

At least 25 percent of automated kiosks at every airport location were to be accessible by December 12, 2022.

The accessible kiosks must provide the same services as the inaccessible kiosks in their location.

A passenger with a disability wishing to use an accessible kiosk must be given priority access to an accessible kiosk.

Accessible Information on Aircrafts

The requirements for what information must be accessible to people who are blind, deaf, or hard of hearing on aircrafts is covered in 14 C.F.R. § 382.119. Some of the requirements are as follows:

Passengers with hearing or visual disabilities have "prompt" access to the same information provided to other passengers on the aircraft to the extent that providing the information accessibly does not interfere with the safety duties of employees.

Covered flight information includes, but is not limited to, the following:

flight safety

procedures for takeoff and landing

flight delays

schedule or aircraft changes that affect people with disabilities

diversion to another airport

scheduled departure and arrival information

boarding information

weather conditions at the flight's destination

Beverage and menu information

connecting gate assignments

baggage claim

individuals being paged

emergencies

Information related to the training of airline employees and contractors on effectively communicating with people with disabilities can be found in 14 C.F.R. § 382.141.

Assistance at Airports

Assistance in Moving Within the Terminal

Assistance in the terminal is addressed in 14 C.F.R. § 382.91. The important things to know are as follows:

Airlines are responsible for helping us make connecting flights.

If our flights are with two separate airlines, the airline on which we took the first leg of our trip is responsible for ensuring we have assistance to our second flight.

Airlines must also provide assistance from the terminal entrance or a vehicle drop-off adjacent to the terminal entrance to the gate.

At our departure location, airlines must provide assistance from the plane to the terminal entrance or a vehicle pick-up area adjacent to the terminal.

This requirement includes assistance accessing key functions of the terminal like ticket counters and baggage areas.

Our assistant has to let us make a "brief stop" at a restroom, including an accessible restroom, as long as it is on the way and stopping would not create an unreasonable delay.

Airlines must work with airports to provide us assistance accessing an animal relief area.

If our disability prevents us from carrying our bags, the airline must assist.

To and From Transportation

The requirement to assist us from a vehicle drop-off or a to a vehicle pick-up area adjacent to the terminal is absurdly impractical and assumes we always have someone without a disability available to drop us off and pick us up. In many instances, Uber and Lyft are restricted to certain areas, which sometimes are not adjacent to the terminal. If an airport offers a public transit option it may be adjacent to one terminal but not all terminals at an airport.

...

In episode two we begin discussing key concepts under Title II of the Americans with Disabilities Act including: notice of rights, complaints; and ADA coordinators.

This link goes to the PDF for episode two. The PDF has all of the most important information discussed in the episode.

Welcome to the first episode of the Demand Our Access podcast. In this episode, I will describe the podcast, the website for the show, and briefly discuss basics of the Americans with Disabilities Act.