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.

Preliminary Information

Questions and Comments

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

The Next Episode

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

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

Maintenance of Accessibility Features, Assistive Mobility Devices, and Existing Facilities Under Title II

Introduction

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

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

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

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

Citations

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

Public Entities

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

Roadmap

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

Maintenance of Accessible Features

Assistive mobility devices

Existing Facilities

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

Maintenance of Accessibility Features

Defining Accessibility Features

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

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

Local governments are required to maintain in operable and working condition those features of facilities and equipment that are required to be readily accessible and usable by people with disabilities.

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

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

Assistive Mobility Devices

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

Use of Wheelchairs and Manually-Powered Mobility Devices

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

Use of Other Power-Driven Mobility Devices

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

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

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

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

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

Existing Facilities

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

Discrimination Prohibited

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

Existing Facilities

General

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

Necessarily require a local government to make all of its existing facilities accessible to and useable by people with disabilities

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