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. Some communities have a clear notice of rights under Title II that tells you how to request accommodations and/or modifications. But many communities, especially smaller ones, do not make this information available and are doing almost nothing to follow the law.
To determine who to contact, I suggest the following ideas:
- Review the government’s home page for any mention of requesting an accommodation or a modification.
- Call your local government and ask how you can request an accommodation or modification under Title II of the Americans with Disabilities Act.
- If your accommodation and/or modification is related to a specific event, see if information about the event lists a way of getting an accommodation. If it doesn’t, see if it lists a contact for questions related to the event.
- Assuming your community has a standard contact form and/or email address for public feedback, use those methods of communication to make your request.
- If you can do so relatively easily, visit your local government’s office and ask for assistance.
Since all of us are different, I’m not going to recommend one point of initial contact over another. If you are more comfortable calling someone, find a number and call. If you are more comfortable writing out your request, use a contact form or an email address. If you enjoy directly talking to someone, visit an office. Of course, the options you have may be limited by accessibility. If the contact form is not accessible, you may need to call. No matter how you do it, you cannot make a request without contacting your local government.
Prepare What You Will Say
Once you know who to contact and you have decided how you will contact them, it’s time to decide what you are going to say. This applies whether you are making your request in writing, over the phone, or by visiting an office. To make this easier to understand, I’m going to go through a sample request. For our purposes, I am going to pretend I need an accommodation to complete an inaccessible registration form so I can register for a ceramics class offered by my local government’s parks and recreation department. I will be submitting my accommodation request through a generic contact form, because I was unable to figure out how to make direct contact with the people running the ceramics class. Here, I am assuming the form enables me to enter my name, phone number, and email address into separate fields. So, all I will share below is what I would enter in the comment field that I will use to make my request.
My Sample Request for Accommodation
As a person with a disability, I’m requesting assistance under Title II of the Americans with Disabilities Act (Title II) to register for the ceramics class taking place at the Oaks Community Center and beginning on August fifth. I’m requesting an accommodation under Title II, because the registration form is inaccessible to those of us who use assistive technologies to access the web. Given the inaccessibility of the online registration system, I cannot independently register for the ceramics class I wish to take.
Given that contact forms tend to have very limited space for comments, I tried to keep my request very simple and short. So, I only included the information I believe they most need. I made sure they understand I’m a person with a disability and that I’m requesting an accommodation under title II of the ADA. I told them the class I wish to register for, the location where it will be, and when it begins. I shared all of that information to assist them in figuring out who will be the best person to assist me in registering for the class. Finally, I told them a little bit about why I’m requesting the accommodation I’m requesting. This approach works well in making your initial request when you don’t know exactly who to contact and whether you are requesting an accommodation or modification.
Once Your Request is Submitted
It’s hard to provide very specific advice as to how you should proceed once your request has been submitted. I wish we could assume your request will be forwarded to someone with the authority to actually address it and some degree of knowledge as to how it should be addressed. But that is not always true. It is impossible for me to go through all of the things that could happen once your request has been submitted. So, I want to share a few pointers for you to keep in mind once you start talking with your state or local government about your request:
- Never forget you have a right to be accommodated and/or to have a policy, practice, or procedure modified to enable you as a disabled person to participate.
- Don’t forget they cannot ask intrusive questions about your disability. In almost every situation, it’s sufficient for you to let them know you are a disabled person. When you discuss the request, you will provide enough information to demonstrate your status as a disabled person.
- If you are requesting an aid or service to enable effective communication, the circumstances where the state or local government could deny your request are very rare.
- Be prepared to explain, to the best of your ability, why you need the accommodation and/or modification you are requesting. This means you should be able to generally explain what is inaccessible to you and why it’s inaccessible to you.
- Be prepared to explain how the accommodation and/or modification you are requesting will create the accessibility you need to participate.
- Don’t let them tell you to bring a friend to assist you. Unless it’s an emergency situation, they cannot rely on someone else assisting you.
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