ADA & Assistive Technology Act of2004Effective CommunicationTitle II &Title III

Objectives:

1. Have a basic understanding of effective communication.

2. Understand the importance of communication in medical care.

3. Know examples of auxiliary aids and services under the ADA.

4. Gain insights into how a state AT Act project may support public and private entities obligation to provide effective communication.

5. Begin development of an action plan for providing communication support.

The purpose of the Assistive Technology Act of 1998, as amended is to support State efforts to improve the provision of assistive technology to individuals with disabilities and increase the capacity of public agencies and private entities to provide and pay for assistive technology devices and assistive technology services on a statewide basis. The Americans with Disabilities Act of 1990 (ADA) is civil rights legislation relating to other federal statutes and regulations including the Assistive Technology Act.  The purpose of the ADA is for the elimination of discrimination against individuals with disabilities through Federal oversight and enforcement of standards.  

Effective Communication

“A public entity shall take appropriate steps to ensure communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.”

Individuals who are CoveredQualified individual with a disability – an individual with a disability who, with or without reasonable modifications to rules, policies, and practices the removal of architectural, communications, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a state or local government.

Effective Communication

“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”

Titles II & IIINondiscrimination Requirements(Note: the nondiscrimination

requirements are the same for both Titles II & III)

No Exclusion of People with Disabilities

Effective Communication“A public entity

shall take appropriate steps to ensure communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.”

“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”

Title II

Common examples of facilities covered under Title II include state and local government offices, public schools, and state licensing and exam centers.

Title III

Common examples of facilities covered under Title III include hospitals, doctors’ offices, restaurants, retail stores, hotels, movie theaters, private schools, convention centers, day care centers, and recreation facilities, such as sports stadiums and fitness clubs. 

Title III Public Accommodation Categories—

1) Places of lodging (e.g. , inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);(2) A restaurant, bar, or other establishment serving food or drink; (3) A motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment; (4) An auditorium, convention center, lecture hall, or other place of public gathering; (5) A bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment; (6) A Laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishments;

Title III Public Accommodation Categories—(7) A terminal, depot, or other station used for specified public transportation; (8) A museum, library, gallery, or other place of public display or collection; (9) A park, zoo, amusement park, or other place of recreation; (10) A nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education; (11) A day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and (12) A gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

Private club means a private club or establishment exempted from coverage under title II of the Civil Rights Act of 1964 (42 U.S.C. 2000a(e)).

Private entity means a person or entity other than a public entity.

ADA RequirementsThe ADA doesn't require using any auxiliary aid that would result in an undue burden or fundamentally change the goods or services provided by a public accommodation. However, the public accommodation is not relieved from the duty to furnish an alternative auxiliary aid, if available, that would not result in a fundamental alteration or undue burden. Both of these limitations are derived from existing regulations and case law under Section 504 of the Rehabilitation Act and are determined on a case-by-case basis.

ADA Relationship to Other Laws

The Department of Justice regulation implementing title II, 28 CFR 35.103, title III, 28 CFR 36.103 provides the following: (a) Rule of interpretation. Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued by Federal agencies pursuant to that title.(b) Other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other Federal, State, or local laws (including State common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.

Assistive Technology Act of 1998 as amendedPUBLIC LAW 108–364—OCT. 25, 2004 118 STAT. 1707(C) DEVICE LOAN PROGRAMS.—The State shall directly,or in collaboration with public or private entities, carryout device loan programs that provide short-term loansof assistive technology devices to individuals, employers,public agencies, or others seeking to meet the needs oftargeted individuals and entities, including others seekingto comply with the Individuals with Disabilities EducationAct (20 U.S.C. 1400 et seq.), the Americans with DisabilitiesAct of 1990 (42 U.S.C. 12101 et seq.), and section 504of the Rehabilitation Act of 1973 (29 U.S.C. 794).

Assistive Technology Act of 1998 as amended(i) TRAINING AND TECHNICAL ASSISTANCE.—(I) IN GENERAL.—The State shall directly, or provide support to public or private entities with demonstrated expertise in collaborating with public or private agencies that serve individuals with disabilities, to develop and disseminate training materials, conduct training, and provide technical assistance, for individuals from local settings statewide, including representatives of State and local educational agencies, other State and local agencies, early intervention programs, adult service programs, hospitals and other health care facilities, institutions of higher education, and businesses.

Undue BurdenThe ADA doesn't require using any auxiliary aid that would result in an undue burden or fundamentally change the goods or services provided by a public accommodation. However, the public accommodation is not relieved from the duty to furnish an alternative auxiliary aid, if available, that would not result in a fundamental alteration or undue burden. Both of these limitations are derived from existing regulations and case law under Section 504 of the Rehabilitation Act and are determined on a case-by-case basis.

§ 36.303 Auxiliary aids and services(a) General. A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.

(b) Examples. The term "auxiliary aids and services" includes –

(1) Qualified interpreters on-site or through video remote interpreting (VRI) services; note takers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing; (2) Qualified readers; taped texts; audio recordings; Brailled materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision; (3) Acquisition or modification of equipment or devices; and (4) Other similar services and actions.

Effective Communication with Individuals with disabilities(c) Effective communication.

(1) A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. This includes an obligation to provide effective communication to companions who are individuals with disabilities.

(ii) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place.

Accessible, Timely & PrivateA public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective 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 the privacy and independence of the individual with a disability.

Providing Equal Access With Auxiliary Aids and Services

There are many ways that you can provide equal access to communications for people with disabilities. These different ways are provided through “auxiliary aids and services.” “Auxiliary aids and services” are devices or services that enable effective communication for people with disabilities.3

Title II of the ADA requires government entities to make appropriate auxiliary aids and services available to ensure effective communication.4

You also must make information about the location of accessible services, activities, and facilities available in a format that is accessible to people who are deaf or hard of hearing and those who are blind or have low vision.5

Generally, the requirement to provide an auxiliary aid or service is triggered when a person with a disability requests it.

3 28 C.F.R. §§ 35. 104, 35.160. 4 28 C.F.R. Part 35.160(b)(1). 5 28 C.F.R. § 35.163 (a).

Different auxiliary aids and services examples that may be used to provide effective communication

Speech synthesizers, communication boards, qualified interpreters, note takers, screen readers, computer-aided real-time transcription (CART), written materials, telephone handset amplifiers, assistive listening systems, hearing aid-compatible telephones, computer terminals, text telephones (TTYs), open or closed captioning, closed caption decoders, video interpreting services, videotext displays, description of visually presented materials, exchange of written notes, TTY or video relay service, email, text messaging, instant messaging, qualified readers, assistance filling out forms, taped texts, audio recordings, Brailled materials, large print materials, materials in electronic format (compact disc with materials in plain text or word processor format)

Action PlanIdentify states that provide ADA Title II

& Title III loans and Technical Assistance.

Share models and other materials. Update loan program devices and

software. Marketing activities to Title II and Title

III facilities.Outreach to individuals with disabilities.Other ideas?

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