Chapter 9: Program Access
A.
In General
“Program access” in Title II is a term of art: its meaning is
different than most people’s “common sense” understanding of what
it means for something to be accessible to people with disabilities.
The most obvious difference between the “program access”
concept and common understanding is that Title II’s program access
requirement does “not . . . necessarily require a public entity to
make each of its existing facilities accessible.”[584]
It is the program, “when viewed in its entirety,” that must
be “accessible to and usable by individuals with disabilities.”[585]
Public entities can achieve program access by making structural
changes to existing facilities to make them accessible.
But program access may be achieved in other ways by: relocating
services to accessible buildings; building new facilities; redesigning
equipment; making home visits; delivering services at alternative
accessible sites;[586] or providing accessible transportation to
accessible program locations.[587]
Two issues that arise in connection with Title II’s “program
access” requirement are: 1) when a program or service is provided at
multiple sites, the number of physical sites or locations must be
accessible to people with disabilities; and 2) the application of the
“program access” requirement when programs and services are
delivered, at least in part, by private agencies under contract and
licensing arrangements.
(i) How Many Sites Must be Accessible Under Title II?
When a program or service is provided at multiple sites, there is
no numerical formula in the regulations for determining how many sites
must be accessible to and usable by people with disabilities. Rather,
the relevant inquiry is whether people with disabilities can benefit
meaningfully and effectively from the program or service; whether the
goals of the program or service are met effectively for people with
disabilities; and possibly whether access to the benefit or service by
people with disabilities is comparable to access by others. When a
particular program site where a state or local government service is
provided is not accessible to, and usable by, people with disabilities,
the question of whether an agency has violated Title II will depend on a
number of factors, including: 1)
whether there are other accessible sites in the area where the service
is provided that the individual is permitted to use;[588] 2)
whether the distance traveled to an accessible site, or average travel
time, is an obstacle for people with disabilities in accessing the
service, and whether it is reasonably equivalent to the travel time of
others;[589] 3)
whether the program has alternative methods for obtaining services, and
whether the agency informs individuals of these alternatives; 4)
whether services obtained through alternative means are reasonably
equivalent to the services provided to others.
In some situations, it may be possible to argue that each site at
which a service is delivered is its own program that must independently
meet the Title II program access requirement: 1)
When the very purpose of a program is to serve people in their own
neighborhoods, it can plausibly be argued that each program site is its
own program, and requiring people to travel to another site impairs or
defeats the nature and purpose of the program.
Libraries and police stations are two examples, as are public
benefits offices, when the benefits are designed and intended to serve
people through neighborhood offices.
2)
When agencies provide emergency services, an argument can be made that
it is inappropriate to view all of the service delivery sites together
as one program. Rather each must be accessible because requiring people
to travel to other areas to obtain the service will impair the
effectiveness of the service. 3)
When program sites do not all provide identical services or facilities,
each site with a unique service should be regarded as its own program
subject to Title II’s program access requirements.
For example, when particular high schools offer unique programs
and courses or have unique equipment, each school is a separate program,
which has to be accessible to and usable by people with disabilities.[590] (ii) Program Access When Programs and Services are Provided Under Contract or Licensing Arrangements
When a public entity contracts with private organizations to
provide services, the relevant question is whether the state or local
government’s program, not the private agency’s program, is
accessible in its entirety. For
example, if a local welfare program provides job training to welfare
recipients but contracts with a private organization to provide some of
this training, it is all of the welfare agency’s training programs,
including those that are provided directly by the agency and those
provided by the private agency, that are relevant under Title II, not
all of the private organization’s training programs.
Some plaintiffs have argued that when a Title II entity contracts
out services to be provided by a private organization or licenses a
private organization to provide the services, each physical site of the
private organization that provides the public entity’s service must be
physically accessible, which is a higher standard than Title II’s
general program access standard. A
few courts have rejected this interpretation.[591]
However, settlements that achieve this higher standard have been
obtained in some cases.[592] (iii)
Which Access Standard is Better: Title II or Title III?
When state or local government services are provided, at least in
part, by private organizations, advocates can use either Title II or
Title III, which applies to privately operated places of public
accommodation, such as retail businesses, private schools, and private
social service and health care organizations, doctors and dentists’
offices, private transportation providers, and other enumerated
privately owned or operated businesses and organizations.[593] Advocates
therefore need to understand the differences between the two standards.
Title III requires places of public accommodation to remove
architectural, communication and transportation barriers when it is
“readily achievable,”[594] which is defined as ”easily accomplishable and
able to be carried out without much difficulty or expense.”[595]
If removal of architectural barriers is not readily achievable,
Title III requires places of public accommodation to make their services
accessible through alternative, readily achievable measures.[596]
A number of factors are relevant to a determination of whether
changes are readily achievable, including the type of operation
involved, the number of employees it has, and the relationship and
degree of separateness between facilities operated by the entity.[597]
Given this standard and the fact that the unit of analysis for
determining accessibility is different under Title II and Title III,
Title III will often be a more stringent access standard for a
particular program site than Title II.
To take one example, a privately operated day care center under
contract with a city to provide services at one site for a city day care
program is required under Title III to remove architectural barriers at
that site if it can be done without much difficulty and expense. That
same day care center may not be required to do this under Title II,
because the relevant program for Title II purposes is likely to be all
of the day care centers operated directly by the city and those under
contract with the city, and all Title II requires is that the city day
care program be accessible in its entirety.
If there are other day care centers in the geographic area
serving children of the same age with similar admission criteria and
some of them are accessible to children and parents with disabilities,
this might be sufficient to achieve program access under Title II.
Even if there aren’t other accessible day care centers in the
area, the city can achieve program access under Title II by making
changes at other program sites, obviating any need for the private day
care center to improve access at its site. If a private day care agency
under contract with the city provides day care at multiple sites, it is
even more likely that any one of those sites will be required under
Title III to remove architectural and other barriers because the
likelihood is greater that it is a larger agency with greater financial
resources. Other
considerations will obviously affect the choice of approach.
If the goal is to improve access to private day care centers
city-wide, going after one particular provider under Title III may not
achieve that result, unless that provider operates a high percentage of
centers or serves a high percentage of individuals served by the city
program, or a single case is sufficiently visible to motivate other
private providers to change their ways. Unless a state or local
government entity contracts out all of its service delivery for a
program to private organizations, private organizations will not have
responsibility for the “big picture” of how a state or local
government program is operated in its entirety.
Advocates can always use both Title II and Title III to address
lack of access to government services provided under contract.
Even then, of course, two different access standards will apply
and a private operator of a service operating under contract to a state
or local government program will be subject to two sets of access
requirements which will not necessarily require that the same action be
taken.
B. Program Access in TANF Programs
An argument can be made that a greater number or percentage of
welfare centers must be accessible to and usable by TANF applicants and
recipients than the number or percentage of sites of many other state
and local government programs, for the following reasons:
1) Welfare centers operate public benefits programs that provide
income and other basic services to those in serious need. Thus the
distance that applicants and recipients should have to travel, and the
other obstacles that applicants and recipients should have to endure to
obtain and continue receiving benefits should be lower than in many
other situations because the consequence of a delay in accessing
services is so severe.
2) Some of the services and benefits provided at these centers,
such as emergency cash assistance and emergency food stamps, are
intended to be provided, and in some cases required to be provided,
within a very short time frame. Indeed,
it is the very purpose of these services to serve people immediately.
If people with disabilities experience obstacles in the
application process, the program has not been effective for people with
disabilities, meaningful access has been denied and the underlying
purpose of the program has not been satisfied.
3) If a TANF program operates through local welfare offices and
each site is designed to serve only those within a particular catchment
area, it may be possible to argue that each local site is a separate
program for the purpose of Title II, and program access cannot be
achieved by referring people with disabilities to other sites.
This is particularly true if the program has not anticipated
serving people at different locations or catchment areas and does not
have a well-functioning system to do so, as a delay in accessing
services is inevitable in this situation.
Even if each welfare center is not considered to be a separate
program and it is permissible under Title II to refer people with
disabilities to locations other than centers that are closest to their
homes, the Title II program access requirement may not be satisfied if
travel times and waiting times for appointments are significantly longer
for people with disabilities traveling to other sites. Given limited accessible transportation, requiring people
with mobility impairments to travel even a little further than others to
access services is likely to create barriers to accessing services.
It is also likely that some service sites will offer unique
education and training programs to TANF recipients, and thus constitute
their own “programs” for program access purposes.
When a public benefits program has several components, such as a
benefits application or recertification process, disability or
work-readiness evaluations, job search activities, and job placements,
each step of the process may be viewed as a separate “program” to
which the program access standard applies.
In addition, the program access standard applies to the entire
process as a whole. Whenever
individuals must satisfy one step of the process before they are
eligible for the next, lack of access to that step affects access to the
later stages.
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[585]. 28 C.F.R. § 35.150(a) (1999). See also OCR TANF Guidance, supra note 242; Anderson v. Dep't of Pub. Welfare, 1 F. Supp.2d 456, 463 (E.D. Pa. 1998). [588]. One court has held that where an existing facility delivering services has 15 or more employees, it must ensure that its office is accessible or arrange to provide services at an accessible location, while sites with less than 15 employees could make a referral to and arrange for the individual to receive services from another accessible provider. See Anderson, 1 F. Supp.2d at 465. [590]. In Putnam v. Oakland Unified Sch. Dist., 980 F. Supp. 1094 (N.D. Cal. 1995), the defendant conceded that high schools with unique programs were separate programs subject to the Title II program access standard. [591]. See Tyler v. Kansas Lottery, 14 F. Supp.2d 1220, 1227 (D. Ka. 1998); Anderson v. Dep't of Pub. Welfare, 1 F.Supp.2d 456, 465 (E.D. Pa. 1998). But see Lightbourn v. Garza, 928 F.Supp. 711, 713-14 (W.D. Tex. 1996) (Secretary of State violated the ADA by allowing political parties to select inaccessible polling places), rev’d on other grounds, 118 F.3d 421 (5th Cir. 1997). [592]. See, e.g., Von Smetterling v. SEPTA, No. 97-CV0748 (E.D. Pa) (settled Sept. 5, 1997) (challenging the sale of tokens for public transportation in inaccessible locations). Texas agreed to limit the sale of lottery tickets to accessible locations when faced with legal action. See Inspection of Lottery Stores Said to be Going Well in Texas, 7(7) Nat’l Disab. L. Rep. Highlights 4 (Feb. 1, 1996). |
