By: Tami Tanoue, CIRSA Executive Director & Greg Barlow, CIRSA Loss Control Manager

Introduction

Let’s start with some Americans With Disabilities Act (ADA) timelines from the past. This historic law was signed into law by President George W. Bush on July 26, 1990, and some initial guidelines for compliance were published by the Department of Justice (DOJ) the next year. Local governments were given one year, from January 26, 1992 to January 26, 1993, to evaluate their services, policies, and practices for ADA compliance. An ADA coordinator, a grievance process, and a transition plan were also required for entities above a certain size. CIRSA made a big push in 1992 to assist members in complying with these initial requirements. So, how do things look today on the compliance front almost 30 years after the ADA was enacted?

Well, despite all good intentions, ADA compliance has not always been easy for local governments, in Colorado and nationwide. The mandates imposed by the ADA have, at times, exceeded budgetary and personnel-related constraints. In some instances, local governments didn’t “get the memo” on those initial ADA requirements. CIRSA has made another big push to assist members in getting up to speed over the past three years, and that assistance continues today. You can see this year’s Loss Control Department training schedule for ADA issues here.

What if you’re one of those local governments that, despite all good intentions, isn’t quite there when it comes to ADA-compliant services, programs, and facilities? Some of the consequences of being out of compliance, as well as some resources, are provided below.

Consequences

The Department of Justice (DOJ) has the responsibility to determine local government compliance with applicable ADA provisions, which include the employment-related provisions of ADA Title I, and the accessible services, programs, and facilities requirements of Title II. The DOJ maintains a very active enforcement presence in ADA matters. All you need to do is to click on the DOJ’s “New on ADA.gov” page to see that the DOJ keeps a close eye on local governments, large and small, for ADA compliance.

How does the DOJ exercise this responsibility? One way is through lawsuits, of course. Some lawsuits end with money damages or other court-imposed remedies, and some are resolved with a negotiated consent decree. Other cases may be resolved without a lawsuit by means of a formal written settlement agreement. Many cases are resolved with informal settlements, where a local government agrees to take the necessary actions to achieve compliance. The DOJ also has access to mediation to resolve some types of cases. And finally, individuals can pursue their own litigation when they believe their ADA rights have been violated.

Bottom line on enforcement? The DOJ has numerous tools at its disposal to ensure compliance with the ADA, and local governments disregard ADA requirements at their peril.

Also, keep in mind that there’s a whole other title of the ADA – Title I, which addresses disability-related employment issues. Thus, there are overlapping as well as separate responsibilities between the DOJ and the U.S. Equal Employment Opportunity Commission (EEOC) on employment issues that arise under the ADA in local governments. And this article doesn’t even touch upon other related laws and regulations, state and federal, that pertain to disability issues.¹

Project Civic Access

The DOJ has an enforcement initiative called “Project Civic Access.” This is a broad effort to ensure that local governments eliminate the physical and communication barriers that prevent persons with disabilities from participating fully in the community. Local government facilities, services, and programs around the country are subject to surveys and visits to identify deficiencies and needed modifications for compliance with ADA requirements. After the survey, an agreement may be created to address the steps the community must take to improve access. You can read more about the DOJ’s selection process and compliance review scope in a DOJ fact sheet here.

Colorado local governments have been among those whose level of ADA compliance has been reviewed under Project Civic Access. You can view a geographical list by clicking on the map here, or a chronological list here. Two Colorado local governments were the subject of Project Civic Access reviews in 2018.

The published settlement agreements are also instructive to review; you can see the scope and breadth of the review, the types of facilities, services, and programs that are reviewed, and the types of commitments that the local government makes as a result of the review. As an example, the settlement agreement with Trinidad, Colorado encompassed the following, and more:

• Numerous municipal buildings, facilities, and parks were reviewed for accessibility.
• Policies, including emergency management, disaster prevention, and sidewalk maintenance were reviewed to evaluate equal access for persons with disabilities.
• The Police Department’s policies and procedures were reviewed regarding effective communication with people who have hearing disabilities.
• Accessibility of polling places and ballot drop-off locations was addressed.
• The City’s website, and its compliance with standards for accessible websites, was also a subject of the review.
• A timetable for compliance with sidewalk and curb ramp accessibility requirements was established.
• And, of course, the appointment of an ADA coordinator, the provision of ADA coordinator training, and the implementation of an ADA grievance procedure were noted.

Resources

If you think you may not be quite up-to-date on ADA compliance, it’s never too late to get on the right track. Start by taking a look at the DOJ’s ADA Best Practices Tool Kit. It will introduce you to ADA Title II basics, and provide you with checklists for compliance for a wide variety of facilities, programs, and services.

If you’re among those who didn’t “get the memo” on the appointment of an ADA coordinator and the establishment of an ADA grievance process, get on board now! The CIRSA training can help, and we can provide or point you to sample materials.

Another helpful guide is the DOJ’s memo on “The ADA and City Governments: Common Problems.” You can view it here. And “ADA Update: A Primer for State and Local Governments” may also be useful; view it here. The ADA Guide for Small Towns, which you can view here, may be helpful as well. Contact your CIRSA loss control rep for more resources as well as assistance.

And don’t forget the other ADA title, Title I, concerning employment opportunities for persons with disabilities. The EEOC has a wealth of compliance materials and information on its website. Start with this introduction to the ADA’s employment provisions, and explore the EEOC website for many other compliance- and enforcement-related materials. Contact CIRSA’s General Counsel, Sam Light, for assistance on ADA-related questions, too.

Conclusion

The ADA is one of the major civil rights achievements of the modern era, and it is relevant to all of us. Any and all of us may be subject to its protections, either now or in the future. Every accommodation, every assistive device, every curb cut, every accessible facility, program, or service, benefits someone – if not you, then possibly a family member, friend, or other loved one. Let’s treat ADA compliance as if our lives depended on it – because someone’s life, perhaps yours or mine, does. And CIRSA is always here to help.

___________________________________

¹ For example, Section 504 of the Rehabilitation Act of 1973, the first disability law of its kind in the United States, prohibits discrimination against people with disabilities in programs or activities that receive federal financial assistance. Section 504 has a narrower scope but contains legal obligations separate from the ADA and is enforceable in its own right. In addition, entities providing transit services must comply with Federal Transit Administration (FTA) guidance in meeting their ADA and other obligations for accessibility in transportation. You can read about the FTA guidelines here.  Finally, Colorado like many states has its own laws making it unlawful to deny access to public facilities or the services they provide because of disability. Colorado’s statutes authorize aggrieved parties to file civil suits to recover penalties for violations, and these rights are in addition to those provided by the ADA.