Chapter
3: The ADA's Planning and Training
Planning by state and local government entities is essential for
compliance with the ADA: as a practical matter, there is no way state
and local governments can achieve ADA compliance without it.
Given the critical role of planning in achieving ADA compliance,
advocates should urge TANF programs to engage in planning and should
seek to play a role in this process whenever possible.
Raising ADA issues in this context allows advocates and
policymakers to shape program modifications that may prevent problems
and achieve program changes that may be difficult to obtain through
litigation.
Title II regulations contain across-the-board planning
obligations for all state and local government agencies.
For the most part, these requirements have been ignored by state
and local governments,[251]
and the deadlines for submitting and implementing these plans have
passed. Nevertheless, a
strong argument can be made that state and local governments that never
completed plans have a duty to do so now.
At the very least, the ADA planning requirements provide a useful
guidepost on the types of actions the Department of Justice views as
necessary to achieve compliance with Title II.
A summary of these requirements follows.
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Title II
regulations require all state or local government entities with 50 or
more employees that intended to undertake “structural changes” in
facilities to achieve compliance with Title II to develop, by July 26,
1992, a transition plan setting forth the steps necessary to make those
changes.[252]
Transition plans are required whenever state or local government
entities are required to make structural changes to comply with the ADA,
and whenever they choose to do so, even though those changes may not
have been required under Title II.[253] By
“structural changes,” the regulations appear to be referring to
architectural changes, as opposed to changes in policies and practices.[254]
The regulation gave an outer limit of three years from the
transition plan deadline, i.e., until January 26, 1995, to complete the
structural changes discussed in the plan.[255]
Depending on the structure of a state’s TANF program and the
number of employees at the state and local TANF agency, both the state
and the local government may have an obligation to develop transition
plans for a TANF program.
In developing a transition plan, the regulations require the
public entity to provide an opportunity for interested persons,
including individuals with disabilities and organizations representing
individuals with disabilities, to participate by submitting comments,[256]
and to make a copy of the plan available for public inspection.[257]
At a minimum, plans must identify obstacles in the public
entity’s facilities that limit the accessibility of its programs;
describe “in detail” the methods that would be used to make the
facilities accessible; and specify the schedule for achieving
compliance.[258]
If the public entity anticipates that the implementation period
would take more than a year, i.e., it would not be completed by July,
1993, the plan is required to identify steps that will be taken during
each year of the transition period.[259] The
agency is also required to identify the official responsible for plan
implementation.[260] If
the public entity drafted a transition plan, under Section 504 of the
Rehabilitation Act,[261] it is only obligated to draft an ADA transition
plan for policies and practices not included in the Section 504 plan.[262]
If a public entity has responsibility or authority over streets,
roads or walkways, the regulations require plans to include a schedule
for providing curb ramps.[263]
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Title II regulations also require public entities, by January
1993, to evaluate their current services, policies and practices, and
their effects, that “do not or may not meet the requirements [of Title
II of the ADA],” and if modification of services, policies, and
practices is needed to achieve compliance, make the necessary
modifications.[264]
Unlike transition plans, the regulations require self-evaluation
plans to be developed by every public entity regardless of the number of
employees it has. The
regulations require public entities to provide an opportunity for the
public to participate by submitting comments on self-evaluation plans,[265]
and public entities with 50 or more employees are required to keep these
plans on file for three years for public inspection, along with a list
of the interested people consulted in developing the plan, a description
of the areas examined, and the problems identified, and a description of
any modifications made.[266]
As with transition plans, agencies that already completed
self-evaluation plans under Section 504 of the Rehabilitation Act are
required to draft a self-evaluation plan and comply with the plan
requirements only for those policies and practices that were not
included in the agency’s Section 504 plan.[267]
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Because Title II applies to state and local governments as well
as departments, agencies and instrumentalities
of these governments, and all public entities must submit plans, a
number of different government bodies and agencies may have
responsibility for submitting plans that cover the same program or
service. If a separate agency oversees the leasing, purchasing or
operation of buildings used by welfare programs, that agency must also
address access issues in those buildings. In some cases advocates have
chosen to press ADA planning issues with units of local government that
have responsibility for a number of programs and services (such as
counties and cities), rather than with specific agencies that directly
operate programs (such as welfare agencies).[268]
Reasons for taking this approach include efficiency, a desire for
a top-down government commitment to ADA compliance, and the possibility
that advocates do not know the full range of programs operated by a
state, city or county. Sometimes
requesting a complete list of the public entity’s programs from the
head of the state, city or county is the first step in the process.[269]
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As a first step, advocates need to determine whether the state
and local governments and agencies with responsibility for TANF programs
have developed ADA transition and self-evaluation plans, and if so,
obtain and review these plans. As
ADA regulations require government agencies to keep copies of
self-evaluation plans on file for public inspection for three years,
which would have been January 26, 1995, if plans were completed by the
deadline, government entities may no longer have these plans or may take
the position that they no longer have to provide public access to these
plans. However, public
entities that did not draft plans or drafted late plans should not be
allowed to benefit from their noncompliance.
Advocates should argue that at a minimum, an agency that drafted
a late plan should keep it on file for public inspection for three years
from the time it is completed. It should be possible to use state
freedom of information laws to obtain plans after the three-year limit.[270]
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It is likely that some state or local agencies with authority for
TANF programs did not create transition and self-evaluation plans for
any of their programs and services.[271] Advocates
and policymakers should insist that they do so now, or conduct an
equivalent planning process with the input of legal aid and legal
services offices and poverty law, disability, and welfare rights
organizations.
Title II regulations require public entities, in creating these
plans, to evaluate their “current” programs and services,[272]
and TANF programs did not exist in July 1992 and January 1993, the
deadlines for developing transition and self-evaluation plans. State and local governments and agencies may take the
position that they have no legal obligation to draft transition and
self-evaluation plans for TANF programs.
However, if governments and agencies drafted no plans, a strong
argument can be made that they have an obligation to do so now.
And, if agencies are going to draft plans now, they may as well
include TANF programs in these plans.
It makes no sense to draft a plan that does not reflect current
programs and services. Having
missed the ADA planning deadlines by several years, state and local
governments and agencies should not now be permitted to go back in time
and avoid reviewing the accessibility of newer programs.
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Title II regulations state that agencies must evaluate
“current” programs and services, which could be interpreted to mean
that agencies that have already drafted plans are not required to update
existing plans. As TANF
programs did not exist in 1992 and 1993, this would mean that TANF
programs would not be covered by transition and self-evaluation plans. However, if existing plans are inadequate or incomplete, an
argument can be made that planning requirements were not satisfied and
plans must be modified even now, years after the planning deadlines. DOJ
has taken the position that an agency’s failure to address a
particular provision of Title II in a plan renders the plan incomplete,
and agencies that drafted incomplete plans must amend or supplement
their plans, and provide an opportunity for interested persons to
participate in this process.[273]
If a plan addresses only the broad brush strokes of ADA
compliance, advocates are in a good position to argue that it is
inadequate and should be revised.[274]
Even if a public entity operating or overseeing TANF programs has
already developed an adequate transition and self-evaluation plan prior
to the passage of PRWORA, advocates can use this as the starting point
for a discussion with the agency about the need for additional planning
on ADA compliance.
Advocates should take the position that there is no way an agency
can achieve the program access and avoid using “methods of
administration” that have a discriminatory effect without assessing
all of its programs and services for accessibility. Indeed, one court has held that the failure to plan is, in
and of itself, a “method of administration”[275] that discriminates against people with
disabilities.[276]
Regardless of whether Title II requires agencies to update
existing plans to include TANF programs, there is no question that these
same agencies are required to complete ADA plans for other programs and
services in existence in 1992 and 1993, including the Medicaid and food
stamp programs. Since the
location, administration, and procedures of Medicaid and food stamp
programs often overlap significantly with those of TANF programs,
advocates can use agencies’ obligation to complete plans for Medicaid
and foodstamps to achieve many of the same goals for TANF clients.
When agencies did not draft plans for Medicaid and food stamp
programs, advocates can argue that they must do so now, and that they
must revise inadequate plans for these programs.
Advocates can also take the position that while they are doing
so, they may as well address TANF programs as well. Even if it is not
possible to persuade agencies to include TANF programs in the plans,
given the overlap in the administration of these programs, drafting,
revising and implementing plans for the Medicaid and food stamps
programs will often improve access to TANF services for people with
disabilities.
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If done correctly, ADA transition and self-evaluation plans are
extensive documents that truly assess whether each of the services
provided by an agency or program is accessible to and usable by people
with disabilities, in compliance with other Title II requirements. The
plans identify what needs to be done to bring programs into compliance
using a specific implementation schedule.
Agencies operating several programs, such as food stamp programs,
Medicaid, TANF, and adult and child protection services, should conduct
separate evaluations of and plans for each program, and should evaluate
an agency’s formal policies and practices, contained in administrative
manuals, guides, policy directives, and memoranda, as well as less
formal practices that may not be written down.[277]
In its Title II Technical Assistance Manual, the Department of
Justice suggests that the following areas need “careful examination”
in an agency’s self-evaluation plan:
1) whether there are physical barriers to access;
2)
the modifications needed to achieve program access, and the steps that
will be taken to achieve access;
3)
whether policies and practices exclude or limit participation of people
with disabilities;
4)
modifications of policies and practices needed to achieve program access
and “complete justifications” modifications that will not be made;
5)
whether communications with applicants, participants and members of the
public are as effective as communications with others;
6)
if the public entity communicates with applicants or beneficiaries by
telephone, whether TDDs or equally effective telecommunications systems
are used;
7)
if telephone emergency services are provided, whether direct access to
TDD and computer modems is ensured;
8)
whether policies and practices insure that readers will be provided to
people with visual impairments;
9)
whether interpreters or other communication measures will be provided
for people with hearing impairments;
10) whether accommodations will be provided for people with
manual impairments;
11)
whether a method for obtaining services exists, and guidance on when
they will be provided,
12)
whether equipment has been assessed for usability and there are policies
to ensure that it is kept in working order;
13)
whether emergency evacuation procedures meet the needs of people with
disabilities, and whether audio and visual warning signals should be
installed and other procedures adopted;
14)
whether decisions about whether a modification would be a fundamental
alteration or an undue financial or administrative burden are made
properly and promptly;
15)
whether public meetings are physically accessible to individuals with
mobility impairments;
16)
whether employment practices comply with Section 504 of the
Rehabilitation Act and the ADA;
17)
whether building and construction policies for new construction and
alterations conform to Title II ADA standards;
18)
whether employees of the public entity are familiar with the policies
and practices of the agency that are necessary to ensure full
participation of people with disabilities, and if appropriate, whether
training will be provided;
19)
whether programs that deny participation to drug users have taken steps
to ensure that they do not discriminate against former drug users;
20)
whether audio-visual and written materials portray people with
disabilities in an offensive or demeaning manner.[278]
The ADA Title II Action Guide for State and Local Governments
suggests that a self-evaluation plan should address these additional
Title II requirements:
1) the agency’s process for responding to requests for
modifications;
2)
the process for determining whether a modification would be a
fundamental alteration;
3) whether the agency has any separate programs for people with
disabilities, and if so,
4) whether people with disabilities are excluded from
participation in regular programs;
5)
whether programs are provided in the most integrated setting appropriate
to the needs of people with disabilities.[279]
Advocates who use the transition and self-evaluation plan
requirements as leverage in raising disability access issues with TANF
agencies will need to have some idea of what plans should look like and
how agencies should go about developing them.
As copies of good plans may be difficult to come by, one place to
look for guidance is the ADA Title II Action Guide for State and Local
Governments.[280]
The Guide contains a proposed five-step process for developing
plans and addresses the need for “institutionalizing compliance.”
The Guide discusses one method of conducting a review of program access
and contains worksheets for conducting the assessments. While these
worksheets do not cover the full range of possible Title II issues, they
provide a helpful starting place.
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Because
Title II requirements apply to services, programs, and activities
regardless of whether the state or local government agency provides
services “directly or through contractual, licensing, or other
arrangements,”[281] all services provided by organizations under
contract with state and local TANF agencies must be included in the
public entity’s transition and self-evaluation plans.[282]
Some state and local agencies that drafted transition and
self-evaluation plans may have overlooked this obligation entirely.
Agencies that have developed ADA plans that do not address the
services and programs provided by private organizations through
contracting, licensing and other arrangements are incomplete and
inadequate under Title II. When this is so, advocates can insist that
agencies amend their plans to include these contracted services, or in
any event to bring ADA compliance planning issues back to the table for
discussion.
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State and local governments have been sued for failing to develop
any,[283]
adequate[284]
or timely[285]
transition and self-evaluation plans, and for lack of compliance with
plans.[286]
Some courts have held that public entities that fail to draft
plans have violated Title II.[287] Others
have held that plans were inadequate for failing to include specific
time frames for modifications,[288]
or other reasons.[289]
As a remedial measure, some courts have ordered public entities
to draft plans[290] or show cause why they should not be required to
do so.[291] Other
cases have ended in favorable settlements.[292]
In all of the cases in which courts ordered relief related to
planning requirements, however, planning claims were brought in
conjunction with claims that programs and services were not accessible
or violated other Title II requirements.[293] A
number of courts have rejected legal challenges to non-compliance with
Title II planning requirements on the basis that these requirements do
not confer standing on private individuals to sue for enforcement
because the requirements run to the benefit of everyone[294]
or because plaintiffs did not plead or prove that there was a connection
between non-compliance with planning requirements and denial of access. [295]
At least one court has treated failure to implement a plan as
evidence of discrimination.[296] While
it may sometimes be possible to link the failure to comply with planning
requirements with other ADA claims, in many instances the most effective
use of these planning obligations will be as a means of engaging
agencies in a discussion about their ADA obligations and their need for
planning.
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Title II regulations do not include specific training
requirements for public entities, but as a practical matter public
entities will not be able to fulfill their obligations under the ADA
without a comprehensive effort to train employees at every level of an
agency or department. Congress noted the essential role of training in
achieving Title II compliance when the ADA was under consideration, and
noted the harmful consequences of failing to train public employees
about their Title II obligations.[297]
Courts have required defendants to conduct training as part of
remedial relief in ADA cases.[298] Title
II settlements have included training for employees,[299]
and courts have suggested that public entities conduct such training.[300]
Courts have also taken note of a public entity’s failure to train
employees.[301]
Advocates should urge public entities to conduct both initial and
ongoing training for current and incoming employees.[302]
Training materials and handbooks of welfare agencies should be reviewed
along with information about whom in the agency receives this training.
Having an ADA compliance manual somewhere in the agency that an
employee can locate if she makes a concerted effort is not sufficient,
and does not qualify as training.[303]
To ensure compliance with the ADA, training should address three
issues: 1) Title II of the ADA and how it applies to the TANF agency; 2)
the nature of disabilities; and 3) the agency’s policies and
procedures for achieving ADA compliance.
Telling employees “not to discriminate” is not adequate:
employees should be instructed on what this means in the particular
context of the agency and its programs and services.[304]
ADA training should emphasize the ADA’s prohibition on
disparate impact discrimination, as employees of public entities are
less likely to be aware that policies and practices with a disparate
impact on people with disabilities can constitute illegal
discrimination. In addition, each employee must be given copies of
written materials discussing their obligations under the law.[305]
Congress was particularly concerned that a lack of understanding
about disabilities by employees of government agencies could result in
discriminatory and in some cases health and life-threatening situations
for people with disabilities.[306] Given
the high percentage of people with disabilities among public assistance
recipients,[307] training about the nature of disabilities is
essential for TANF programs. Training should address the fact that many
disabilities are not visible, and should include education on prevalent
disabilities that may not be visible, including cardiovascular
disabilities, asthma, diabetes, seizure disorders, learning
disabilities, and psychiatric disabilities.
Training must also address the ways in which these disabilities
might give rise to the need for modifications in the agency’s policies
and practices. Given the
high percentage of individuals with psychiatric disabilities among
applicants and recipients for public benefits,[308]
and the frequent misperceptions and lack of understanding about
psychiatric disabilities generally, special attention must be given to
psychiatric disabilities in training efforts.
Finally, employees should receive training about the agency’s
own practices and procedures for ensuring ADA compliance.
These include: procedures for requesting and obtaining
modifications; procedures for obtaining sign language interpreters and
other auxiliary aids and devices; procedures for conducting home visits,
providing flexible appointments, and alternative means of applying for
services; procedures for waiving program requirements when necessary to
avoid discrimination; the agency’s ADA grievance procedures; and the
identity of the designated individual responsible for coordinating the
agency’s ADA compliance.
Training should be provided for employees at all levels of the
agency, including individuals who come into direct contact with
applicants and recipients, those with responsibility for making
determinations on applications for benefits and their supervisors, and
those in policy-making positions. Receptionists,
security guards, and individuals who provide information over the phone
should be trained as well, because they are often the first people
applicants and recipients encounter from the agency and the first to
relay basic information about the agency and its programs. These
front-line personnel set the tone for the agency’s interaction with
the public, and they often have an enormous impact on access to services
for people with disabilities.[309]
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