To provide access to civic life for people with disabilities
Through lawsuits and settlement agreements, the Department of Justice has achieved greater access for individuals with disabilities in hundreds of cases. Under general rules governing lawsuits brought by the Federal government, the Department of Justice may not sue a party unless negotiations to settle the dispute have failed.The Department of Justice may file lawsuits in federal court to enforce the ADA, and courts may order compensatory damages and back pay to remedy discrimination if the Department prevails. Under title III, the Department of Justice may also obtain civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation.
Employees number one liabilityhttp://www.hhs.gov/ocr/civilrights/resources/factsheets/howtofilecr.pdfAny individual who believes that he or she or a specific individual or class of individuals has been subjected to discrimination on the basis of disability, in a health or human service program or activity conducted by a covered entity, may file a complaint with OCR. Complaints must be filed within 180 days from the date of the alleged discrimination. OCR may extend the 180-day deadline if you can show "good cause.“http://www.ada.gov/publicat.htm#Anchor-TitleII-47857
Title 49: TransportationPART 27—NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCESubpart C—EnforcementBrowse Previous | Browse Next§ 27.125 Compliance procedure.(a) General. If there is reasonable cause for the responsible Departmental official to believe that there is a failure to comply with any provision of this part that cannot be corrected by informal means, the responsible Departmental official may recommend suspension or termination of, or refusal to grant or to continue Federal financial assistance, or take any other steps authorized by law. Such other steps may include, but are not limited to:(1) A referral to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractural undertaking; and(2) Any applicable proceeding under State or local law.(b) Refusal of Federal financial assistance. (1) No order suspending, terminating, or refusing to grant or continue Federal financial assistance becomes effective until:(i) The responsible Departmental official has advised the applicant or recipient of its failure to comply and has determined that compliance cannot be secured by voluntary means; and(ii) There has been an express finding by the Secretary on the record, after opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed by or pursuant to this part.(2) Any action to suspend, terminate, or refuse to grant or to continue Federal financial assistance is limited to the particular recipient who has failed to comply, and is limited in its effect to the particular program or activity, or part thereof, in which noncompliance has been found.(c) Other means authorized by law. No other action is taken until:(1) The responsible Departmental official has determined that compliance cannot be secured by voluntary means;(2) The recipient or other person has been notified by the responsible Departmental official of its failure to comply and of the proposed action;(3) The expiration of at least 10 days from the mailing of such notice to the recipient or other person. During this period, additional efforts are made to persuade the recipient or other person to comply with the regulations and to take such corrective action as may be appropriate.[44 FR 31468, May 31, 1979. Redesignated at 56 FR 45621, Sept. 6, 1991. 68 FR 51391, Aug. 26, 2003]
Citizen SuitJon Culvahouse, et al. v. City of Laporte (2009) http://indianalawblog.com/archives/2010/01/01/index.htmlSynopsis: the plaintiffs say the City’s sidewalks qualify as a “service, program, or activity” within the meaning of the ADA, so the City must make the sidewalks readily accessible to people with disabilities. The City responds, first, the sidewalks don’t constitute a service, program, or activity under the ADA; second, maintenance of existing sidewalks is the home owner’s responsibility under LaPorte City Ordinance No. 733, so requiring the City to repair or improve sidewalks would require implementation of a new service, program, or activity contrary to the ADA’s requirements; and, third, granting the requested relief would result in an undue financial burden to the City. The City also says that because historically it has chosen to not provide sidewalks and sidewalk maintenance to its citizens, any requirement to undertake such work now would amount to a new service not required by the ADA. The court denies the City’s motion and grants the plaintiffs’ motion in part. Key snippets:Indiana municipalities have “exclusive jurisdiction over bridges, streets, alleys, sidewalks, watercourses, sewers, drains, and public grounds inside [their] corporate boundaries, unless a statute provides otherwise.” IND. CODE § 36-1-3-9(a). Indiana courts over the years have continued to recognize municipalities’ authority and duty to keep their sidewalks in a reasonably safe condition for use by the public.One claiming that a public program or service violates the ADA must establish “(1) that he [or she] has a qualifying disability; (2) that he [or she] is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that such discrimination is by reason of his [or her] disability.Title II imposes an affirmative obligation on public entities to make their programs accessible to qualified individuals with disabilities, except where compliance would result in a fundamental alteration of services or impose an undue burdenRequiring the City to maintain its sidewalks so that they are accessible to individuals with disabilities is consistent with the tenor of [28 C.F.R.] § 35.150, which requires the provision of curb ramps, ‘giving priority to walkways servicing’ government offices, ‘transportation, places of public accommodation, and employers,’ but then ‘followed by walkways serving other areas.’ 28 C.F.R. §35.150(d)(2). Section 35.150's requirement of curb ramps in all pedestrian walkways reveals a general concern for the accessibility of public sidewalks, as well as a recognition that sidewalks fall within the ADA’s coverage, and would be meaningless if the sidewalks between the curb ramps were inaccessible.The ADA is broad enough to include public sidewalks within the scope of a city’s services, programs, or activitiesCities and towns in this state have control of streets and sidewalks within their respective limits, and are bound to exercise reasonable care to keep them in a safe condition for travel. This duty is primary, and cannot be delegated to another so as to transfer the responsibility.The plaintiffs must show that “but for” their disabilities, they would have been able to access the services or benefits desired, that is, use of the sidewalks in LaPorte. Once the plaintiffs have made this prima facie showing, the defendant must come forward to demonstrate unreasonableness or undue hardship in the particular circumstances.An undue financial burden defense must be based on consideration of all resources available for use in the funding and operation of the service, program, or activityReferences to other cases:Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir. 1998) (“[W]e find that the phrase ‘services, programs, or activities’ encompasses virtually everything that a public entity does.”)New Jersey Protection and Advocacy, Inc. v. Township of Riverside, No. 04-5914, 2006 WL 2226332, at *3 (D.N.J. Aug. 2, 2006) (“this court deigns to find that sidewalks are, in and of themselves, programs, services, or activities for the purpose of the ADA’s implementing regulations”)Town of Highland v. Zerkel, 659 N.E.2d 1113, 1120 (Ind. Ct. App. 1995) (“the trial court correctly instructed the jury that the duty to maintain the reasonably safe condition of town sidewalks lies solely with Highland and that the homeowners abutting the sidewalk have no duty to repair the sidewalks”)
Detectable warning pavers help aid the visually impaired. Missing post. Small stop sign
Also note the door threshold
§ 35.105 Self-evaluation.(a) A public entity shall, within one year of the effective date of this part, evaluate its current services, policies, and practices, and the effects thereof, that do not or may not meet the requirements of this part and, to the extent modification of any such services, policies, and practices is required, the public entity shall proceed to make the necessary modifications.(b) A public entity shall provide an opportunity to interested persons, including individuals with disabilities or organizations representing individuals with disabilities, to participate in the self-evaluation process by submitting comments. (c) A public entity that employs 50 or more persons shall, for at least three years following completion of the self-evaluation, maintain on file and make available for public inspection: (1) A list of the interested persons consulted; (2) A description of areas examined and any problems identified; and (3) A description of any modifications made. (d) If a public entity has already complied with the self-evaluation requirement of a regulation implementing section 504 of the Rehabilitation Act of 1973, then the requirements of this section shall apply only to those policies and practices that were not included in the previous self- evaluation.
No one of us is as smart as all of us!Leadership is everyone’s business!
Americans with Disabilities Act "ADA“ Compliance needs for Local Government
Agenda• ADA What is it?• Example Situations• How to get started• Milestones
Panel Andrew Harrison, GISP firstname.lastname@example.org 317-690-1513 Ronald Nordmeyer, PE email@example.com 317-826-7107 Randy Warman firstname.lastname@example.org (317) 826-7170
Americans with Disabilities Act• Standards?• Mandates?• Suggestions?Civil Rights Law• Civil and political rights are a class of rights that protect individuals freedom from unwarranted infringement by governments and private organizations, and ensure ones ability to participate in the civil and political life of the state without discrimination or repression. http://en.wikipedia.org/wiki/Civil_and_political_rights
Americans with Disabilities ActPresident George W Bush signed the ADA BillintoLaw -July 26, 1990The safeguards regarding discrimination against individuals withdisabilities are under the same procedures applicable to race,color, sex, national origin and religious discrimination under theCivil Rights Acts of 1964 and 1991. Complaints against employerswho violate the ADA should be filed with Equal EmploymentOpportunity Commission or the designated state human rightsagencies. Source: National Center for Learning Disabilities
ADA Enforcement• The Department of Justice may file lawsuits in federal court to enforce the ADA, and courts may order compensatory damages and back pay to remedy discrimination if the Department prevails. Under title III, the Department of Justice may also obtain civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation.• http://www.ada.gov/enforce.htm
Loss of Fed Funds• Title 49: Transportation § 27.125 Compliance procedure. – (a) General. If there is reasonable cause for the responsible Departmental official to believe that there is a failure to comply with any provision of this part that cannot be corrected by informal means, the responsible Departmental official may recommend suspension or termination of, or refusal to grant or to continue Federal financial assistance, or take any other steps authorized by law. Such other steps may include, but are not limited to:
Five Titles of the ADAI. EmploymentII. Public ServicesIII. Public AccommodationsIV. TelecommunicationsV. Miscellaneous
Five Titles of the ADAI. EmploymentII.Public ServicesIII. Public AccommodationsIV. TelecommunicationsV. Miscellaneous
Example Problem• Community being sued to fix and build ADA compliant sidewalks throughout the entire community• Estimate cost of repairs and new improvements was unknown
What did they collect?• Evaluate sidewalk and curb ramps using the following criteria: – Difference in Elevation: A difference in elevation between square of ½” or greater. – Cracks: A crack that is ½” or more in width and 24” or more in length, or a crack that is ¾” or wider and any length. – Surface Spalling: Crumbling or chipping away of the surface of at least ¼ of the sidewalk square area and ½” deep. – Trees uprooting sidewalks. – Sidewalk and Curb Ramps not built to ADA Standards.
• How ? Ortho review of existing sidewalks• Added data layers to GPS units with forms• GPS unit and camera for collection• Field collection• GPS points collected of damaged areas• Attributes describing condition were entered• Photos were taken and linked to the GPS point• Information was reviewed and correction cost estimated and Transition Plan outlined
Sample Problems• Mailbox is in the sidewalk area – should be relocated.
Sample Problems The sidewalk pavement should be replaced.
Sample ProblemsThere are no truncated dome warnings at the crosswalk (warningdevices should be installed). Sidewalk is uneven, there are nocompliant ramps – ramps should be installed – the sidewalk pavementshould be replaced.
Sample ProblemsCrosswalk at Main and Trail – there are no truncated dome warnings at thecrosswalk (warning devices should be installed)
Sample ProblemsSeating area on the Trail – the pavement at the edge of the seating area hasa step greater than allowed by the ADA (pavement should be leveled)
Sample ProblemsRamp to railroad car – the railing does not meet the handrail and pickets(post) requirements (also does not meet State Code) (railing should bebrought into compliance).
Sample ProblemsSign on the restroom door is to high – the sign should be on the latchside wall – there is not enough room (sign should be 60 inches fromthe floor)
Sample ProblemsThe sink does not have the 24 inch knee space under and is to low (ADArequired the lip of the sink to be 34 inches from the floor (the sink should bereplaced with one that is compliant)The drain and water lines are required to be protected (the lines should beprotected with approved coverings):
Sample ProblemsThere are no compliant ramps – ramps should be installed. There areno truncated dome warnings at the crosswalk (warning devices shouldbe installed). Mailbox is in the sidewalk area – should be relocated.
Sample ProblemsDoor into Office area – door is not 36 inches, there is not the clearance infront of the door and to the pull side – the door can not be replaced due tothe building configuration – Office should provide access to anyone with adisability that needs assistance
What should a transition plan include? The transition plan must include a schedule for providing access features, including curb ramps for walkways. 28 CFR §35.150(d)(2). The schedule should first provide for pedes-trian access upgrades to State and local government offices and facilities, transporta-tion, places of public accommodation, and employers, followed by walkways serving other areas. 28 CFR §35.150(d)(2). The transition plan should accomplish the following four tasks: • identify physical obstacles in the public agencys facilities that limit the accessibility of its programs or activities to individuals with disabilities; • describe in detail the methods that will be used to make the facilities accessible; • specify the schedule for taking the steps necessary to upgrade pedestrian access to meet ADA and Section 504 requirements in each year following the transition plan; and • indicate the official responsible for implementation of the plan. 28 CFR §35.150(d)(3). (9-12-06)Source: FHWA Offices of Civil Rights, Infrastructure, Chief Counsel, and Planning, Environment, and Realtyhttp://www.fhwa.dot.gov/civilrights/programs/ada_sect504qa.htm#q11
Self-Evaluation and Transition Plan Steps• Self-Evaluation and Transition Plan development• Public Meetings• Self-Evaluation and Transition Plan Adoption
Self-Evaluation and Transition Plan• Inventory of existing conditions• Type of services provided and location• Determine compliance with ADA standards• Define cost for changes necessary• Alternative recommendations• Timeline
The Public Meeting Leadership Leader• Broad Representation – Disabled community Followers – Advocates for the disabled Situation• Effective Local Leadership• Expert Technical Support• Become equally educated – Everyone gets the same information.• Become advocates – Everyone starts to take ownership• Build consensus – Everyone agrees in the direction of the project
Adopt the Transition Plan• In a public hearing (Commissioners, Council) present final Transition Plan for questions and adopting.
MACOGTitle II - Example ADAMilestonesSourcehttp://bloomington.in.gov/media/media/application/pdf/9144.pdf
Option 1 - Do nothing• Risk Lawsuits• Risk Funding• Risk Public Safety• Risk Liability
Option 2 - Get expertiseHire a professional (The Schneider Corporation)• Get the benefit of the experience that a qualified ADA consultant brings. – Experts, Standards, Resources, Integrated Approach – Sometimes a new voice will be heard where an old voice may not.
Resources• Office of Civil Rights – http://www.fhwa.dot.gov/civilrights/programs/ada_sect504qa.htm #q23• Americans with Disabilities Act Title II Regulations – http://www.ada.gov/regs2010/titleII_2010/titleII_2010_regulations .htm#a35105
You Celebrating 50 years of service, The Schneider Corporation has been providing creativeThank solutions for land, infrastructure and facilities projects that help increase revenue, lower costs and mitigate risk and we can do the same for you. Please contact a business development manager for more information. C ontact: Andrew Harrison, GISP email@example.com 317-690-1513 Randy Warman firstname.lastname@example.org (317) 826-7170