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Title II of the ADA
Responsibilities of State and Local Government Agencies Under Title II of the ADA
Deaf and hard of hearing people are entitled to effective communication
with state and local government agencies. Title II of the Americans
with Disabilities Act (ADA), 42 U.S.C. SıSı12131-12134, forbids
discrimination by any public entity. This federal law applies to
all types of state and local government agencies, including courts,
schools, social service agencies, legislatures, commissions and
councils, recreational facilities, libraries, and state/county/city
departments and agencies of all kinds. It applies to activities
that are administered directly by government agencies, and to activities
that are carried out by private subcontractors.
The U.S. Department of Justice has issued regulations explaining
the requirements of that Act, 28 C.F.R. Part 35, 56 Fed. Reg. 35694
(July 26,1991) (U.S. Department of Justice Final Rule: Nondiscrimination
on the Basis of Disability in State and Local Government Services).
Under the ADA, local and state agencies are required to give equal
access and equally effective services to people with disabilities.
28 C.F.R. 35.130.
They may not deny people an opportunity to participate in their
programs, or give them an opportunity that is less effective than
the opportunity given to others. Often, the public entity must provide
qualified interpreters, TTYs, visible warning devices, or captioned
materials and other auxiliary aids to ensure effective communication
with deaf and hard of hearing people. The Department of Justice
regulation specifically states:
(A) A public entity shall take appropriate steps to ensure that
communications with applicants, participants, and members of the
public with disabilities are as effective as communications with
others.
(B)1. A public entity shall furnish appropriate
auxiliary aids and services where necessary to afford an individual
with a disability an equal opportunity to participate in, and enjoy
the benefits of, a service, program, or activity conducted by a
public entity.
2. In determining what type of auxiliary aid and service is necessary,
a public entity shall give primary consideration to the requests
of the individual with disabilities.
28 C.F.R. Sı35.160 (emphasis added).
There are many types of auxiliary aids and services that may be
necessary for effective communication. Furthermore, an auxiliary
aid that is effective for one person might not be effective for
another person. The Department of Justice regulation defines the
term "auxiliary aid" comprehensively:
[q]ualified interpreters, notetakers, computer-aided transcription
services, written materials, telephone handset amplifiers, assistive
listening devices, assistive listening systems, telephones compatible
with hearing aids, closed caption decoders, open and closed captioning,
telecommunication devices for deaf persons [TTY's], videotext displays,
or other effective methods of making aurally delivered materials
available to individuals with hearing impairments.
28 C.F.R. 35.104.
The appropriate auxiliary aid depends on many factors, such the
type of communication used by the individual and the situation in
which communication occurs. An auxiliary aid that is appropriate
for one person, or in one context, may be useless in another setting
or for a person with a different type of hearing loss.
The individual with disabilities should be deferred to in the choice
of what auxiliary aid or service is appropriate:
In determining what type of auxiliary aid and service is necessary,
a public entity shall give primary consideration to the requests
of the individual with disabilities.
28 C.F.R. Sı35.160(b)(2).
The Analysis of the ADA regulation states:
The public entity must provide an opportunity for individuals with
disabilities to request the auxiliary aids and services of their
choice. This expressed choice shall be given primary consideration
by the public entity. . . The public entity shall honor the choice
unless it can demonstrate that another effective means of communication
exists or that use of the means chosen would [constitute an undue
burden].
56 Fed. Reg. at 35711, 35712.
The deaf individual's own assessment of the necessary type or level
of service is entitled to "primary consideration."
For a deaf person who relies on sign language, the ADA usually
requires provision of qualified sign language interpreter services
when that service is needed to ensure effective communication. The
U.S. Department of Justice has defined "qualified interpreter",
for purposes of Title II, to mean:
. . . an interpreter who is able to interpret effectively, accurately
and impartially both receptively and expressively, using any necessary
specialized vocabulary.
28 C.F.R. 35.104.
Although the definition does not require "certified"
interpreters, it does require interpreters with the necessary skill
to interpret accurately in the particular context.
The agency may not charge the individual for providing auxiliary
aids and services.
If services are available by telephone, the agency must either
have a TTY device, and/or accept and make telephone calls using
a relay service. The goal of having the TTY equipment and using
relay service is to provide equally effective telephone services
to deaf individuals.
In addition to providing auxiliary aids and services, public entities
must modify their policies and practices when necessary to prevent
discrimination. For example, a facility with a "no pets"
requirement must modify that requirement to permit a blind or deaf
person to use an assistance animal.
In a few judicial regions, courts have held that Title II of the
ADA is not constitutional as applied to state government agencies.
This issue is currently being litigated in a number of federal courts
of appeal and federal district courts, as well as cases before the
U.S. Supreme Court. Any person bringing a claim under Title II of
the ADA should consult with a local attorney to determine the current
status of the law in your state.
This material was prepared by the National Association of the Deaf
Law Center. It is intended solely as informal guidance. This material
is not legal advice. For technical assistance and additional information
about how laws against discrimination apply to you, contact the
NAD Law Center, a local attorney, or an enforcement agency.
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