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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.
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.
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 what aid or service is appropriate. The goal is to provide an aid or service that will be effective, given the nature of what is being communicated and the person’s method of communicating. This means places of public accommodation can provide any auxiliary aid or service as long as it is equally effective as the accommodation you requested would have been.
In my view, the lack of a primary consideration requirement under Title III is another weakness with the law. The reason is by failing to force places of public accommodation to largely honor our requested method of communication, the law allows people without disabilities to determine what constitutes an effective method of communication for us. If we disagree with a businesses provided auxiliary aid or service, we do not have an easy way of enforcing our rights, especially when factoring in the length of time associated with complaint processes. So, the lack of a primary consideration requirement essentially allows businesses to determine how they will effectively communicate with us, whether we like it or not.
Determining the Effectiveness of a Method of Communication
In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect our privacy and independence. Covered entities are required to look at the nature, length, complexity, and context of the communication, as well as the person’s regular method(s) of communication. In other words, if what is being communicated is long, complex, or even partially confidential, the need to defer to the requested method of communication becomes more important under Title II, where the primary consideration requirement applies.
Undue Administrative and Financial Burdens
Administrative and Financial Burdens Under Title II
The issue of a requested method of communication constituting an undue financial burden is simple to address under Title II: there is almost no chance a requested method of effective communication will ever constitute an undue financial burden for entities covered by Title II. This is because the decision is made by comparing the cost of the requested method of communication with the covered entity’s entire budget; for example, if you request a document in braille, the cost of having the document translated into braille would be compared with the entire budget of the city. Obviously, the cost of providing a document in braille is insignificant when compared to a government’s entire budget. To further highlight this point, if you request an accommodation from your local water bureau, the water bureau cannot compare the cost of accommodating you with the budget for the water bureau. Even when you request an accommodation from a specific governmental agency, bureau, or department, the cost comparison is made against the entire government’s budget.
An undue administrative burden under Title II can result when providing the requested method of communication would result in “significant difficulty.” The circumstances where a Title II entity could claim providing a requested method of communication constitutes an undue administrative burden are rare.
Undue Administrative and Financial Burdens Under Title III
in determining whether a particular aid or service would result in an undue financial burden, a title III entity should take into consideration the nature and cost of the aid or service relative to their size, overall financial resources, and overall expenses. In general, a business or nonprofit with greater resources is expected to do more to ensure effective communication than one with fewer resources. If the entity has a parent company, the administrative and financial relationship, as well as the size, resources, and expenses of the parent company would also be considered.
In short, places of public accommodation, whether they are businesses or nonprofits, must consider the cost of your request when compared with the size of their budget. The larger the budget, the less likely they will be able to claim your request constitutes an undue financial burden.
An undue administrative burden under Title III is the same as it is under Title II. This means Title III entities are allowed to consider the impact on their staff when determining whether your requested accommodation constitutes an undue administrative burden.
A Fundamental Alteration
Something fundamentally alters an activity, program, or service when it changes the essential nature of the activity, program, or service. Like questions of undue burden, the circumstances where a method of communication fundamentally alters an activity, program, or service are rare. The example of a fundamental alteration used by DOJ is if a theatrical performance needs to be slowed down in order for the action to be described to a blind person; slowing down the action would fundamentally alter the essential nature of the live performance.
Denying a Method of Effective Communication
Under Title II, there is a process covered entities must follow if they are going to deny your requested method of communication. There is no similar process for Title III entities to follow when they deny your requested method of communication.
Under 28 CFR § 35.164 all denials related to requested methods of effective communication must be in writing. The writing must contain justifications for the denial, and it must be signed by a department head or their designee.
Putting it simply, if a local government wants to deny your requested method of communication, it has the burden of proving your requested method of communication constitutes a fundamental alteration and/oror would result in undue administrative and financial burdens.
No Sur Charges!
Covered entities, whether covered by Title II or Title III, cannot—under any circumstance—charge a person with a disability for the cost or the portion of the cost of an auxiliary aid or service. The cost of providing effective communication is strictly the responsibility of the covered entity.
Time for Requesting Accommodations
Entities covered by either Title II or Title III can request that those of us with disabilities request accommodations prior to events or in advance of information being provided. But the times must be reasonable. Typically, entities who have good policies will suggest we submit our requests three to five days in advance. But whether we request an accommodation in advance or not, public entities are required to accommodate us. This means a public entity cannot refuse to accommodate us because we did not request an accommodation 72 hours prior to an event, as they requested. No matter when we request an accommodation, they must do their best, under the circumstances, to accommodate us.
Even though we do not have to request an accommodation early, experience has most likely taught all of us that unless we request an accommodation early, we are unlikely to get a satisfactory accommodation. This is especially true when what we are requesting would not be super easy for them to provide.
Under Title II
Title II provides more protection than does Title III. Under Title II, entities pretty much have to give us the accommodation we request as long as we request it in a reasonable time. As I hope you have seen, it is really hard for Title II entities to claim a requested method of communication results in a fundamental alteration or would cause undue administrative and financial burdens.
If you need an accommodation related to effective communication from your local government, just tell them what you want and why you want it. In almost every case, they will need to grant your request.
Under Title III
The law is not as favorable under Title III as it is Title II. In order to not stress actual small businesses too much, Title III was made weaker than Title II, allowing large businesses wiggle rom on what accommodations they provide.
Still, you are entitled to accommodations from Title III entities. In order to get them, though, you should be prepared to clearly explain why you are requesting ayour accommodation and how it will help. If you are talking about confidential and/or sensitive things, be sure to remind them of the need for qualified assistance and your right to privacy.
A Final Thought on Companions
Given my own experiences and what I know has happened to others, I want to finish by reminding you that neither Title II nor title III entities, except in cases with safety concerns, can force you to use someone who accompanied you to assist you. In cases where your companion is your child, only in situations involving safety can your child provide assistance to you. As soon as someone suggests your child assist you and there is no threat to safety, they are violating your rights.
This is the end of our look at effective communication under Titles II and III of the ADA. The recording says the next episode will cover the Web Content Accessibility Guidelines. For a number of reasons that may not be true. I have to be flexible when planning what to discuss and when to discuss it.
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