The Americans with Disabilities Act & the Integration Mandate

1. The Americans with Disabilities Act & the Integration Mandate This document contains general information for educational purposes and should not be construed as legal advice. It is not intended to be a comprehensive statement of the law and may not reflect recent legal developments. If you have specific questions concerning any matter contained in this document or need legal advice, we encourage you to consult with an attorney. Created in 2009 by Disability Rights NC

2. What Will I Learn Today? • What does “person with a disability” mean under the Americans with Disabilities Act? • What is the ADA? What are the parts of the ADA? • What is the Integration Mandate? • What is a reasonable accommodation or modification?

3. Disability Rights NC: P&A for North Carolina • P&A is an acronym for ‘protection and advocacy system’. • It is a federally mandated system and exists in every state and territory and one Native American consortium. • P&As provide legally based services through the protection of rights and advocacy for appropriate services for individuals with disabilities.

4. Who is eligible for Disability Rights NC Services? • People who have a: • Developmental Disability; • Mental Illness; • Traumatic Brain Injury; or • Functional limitation consistent with the ADA • Disability Rights NC also provides technical assistance/training to attorneys, advocates, and other entities.

5. Americans with Disabilities Act(ADA) • The ADA is a federal civil rights law for people with disabilities. • It covers employment, state and local government services, public accommodations, and telecommunications for the deaf. • The ADA is designed to remove barriers which prevent qualified individuals with disabilities from enjoying the same opportunities that are available to persons without disabilities.

6. ADA Amendments Act of 2008 • Courts narrowed the original 1990 ADA’s definition of disability so that almost no one was covered • The ADA Amendments Act of 2008 (ADA AA) changed the definition of “disability” so that individuals who use mitigating measures such as hearing aids, prosthetics or medication are now protected from discrimination under the ADA. • The ADA AA also has a much broader definition of disability, including impairments that are transitory or episodic, such as epilepsy, which were not considered a disability under the previous ADA.

7. Who does the ADA cover? All people with disabilities, visible and hidden, including: • a person with a physical or mental impairment that substantially limits one or more major life functions (eating, breathing, caring for oneself, working, walking, etc.), OR • a person with a record of such an impairment (even if that record is inaccurate), OR • a person who is regarded as having such an impairment. Some people are explicitly excluded from coverage, including: • current users of illegal drugs (but those with a history of drug or alcohol abuse are covered, and an employer may continue to conduct drug tests on employees for illegal drugs.) • those with "sexual behavior disorders" such as transvestitism or transsexualism, AND • those who have the conditions of compulsive gambling, kleptomania, or pyromania.

8. Major Life Activities • Seeing • Hearing • Walking • Speaking • Breathing • Learning • Working • Caring for oneself • Performing manual tasks • Standing • Lifting Now also include: • Bending • Eating • Sleeping • Reading • Concentrating • Thinking • Communicating

9. Substantially Limits • An impairment is a disability if it substantially limits the condition, manner, or duration under which an individual can perform a major life activity as compared to most people in the general population

10. Duration of Impairment • Temporary non-chronic impairment of short duration, such as a broken bone that is expected to heal normally, usually not substantially limiting • Impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active • Episodic conditions that impose only minor limitations are not substantially limiting

11. “Regarded As” Disabled • Broader definition of “regarded as” disabled will cover anyone subjected to an action prohibited by the ADA because of a real or perceived physical or mental impairment • No longer need to show that Employer perceived individual as being substantially limited in a major life activity, only that they perceived an impairment

12. Mitigating Measures These are no longer included when determining whether someone qualifies as “disabled” entitling them to protection under the ADA: • Medication, medical supplies and equipment, low vision and hearing devices, prosthetics, mobility devices, etc. • Use of assistive technology • Learned behavioral or adaptive neurological modifications • Reasonable accommodations

13. Qualified Individual with a Disability • Satisfies the eligibility requirements for the program or activity with or without reasonable accommodation. • For certain activities, there may be “essential” specific skill and performance requirements.

14. Direct Threat • An individual with a disability may be excluded if she or he poses a direct threat to the health or safety of others. • Must be based on medical or other objective evidence. • Must consider factors such as duration of the risk; nature and severity of the potential harm; and the likelihood of occurrence and the imminence of the potential harm, etc.

15. Structure of the ADA • Title I: Employment • Title II: State and Local Government Services and Programs • Title III: Private Entities Operating Public Accommodations or Commercial Facilities • Title IV: Telecommunications • Title V: Miscellaneous

16. ADA Title II: Access • Title II Covers Access to: • Courts • City Council Meetings • Police/Fire Departments • City/County Programs/Activities

17. ADA Title II: State and Local Governments • May not refuse to allow a person with a disability to participate in a service, program, or activity because of the disability. • Are required to make reasonable modifications to policies, practices and procedures that deny equal access. • Must furnish auxiliary aides and services when necessary to assure effective communication. • May not impose special charges on individuals to cover the costs of necessary measures. • May not impose an accommodation or benefit

18. Program Access cont. • The program must be accessible-must have equal opportunity to benefit • People must not be excluded from programs, services and activities because buildings are inaccessible. • Barrier removal, alternate site, other methods of access • When separate programs are allowed, a person may still choose to participate in the regular program. This may change the obligations of the entity for the regular program. • Absence of a person with a disability does not relieve an entity of its obligation to make a program accessible.

19. Integration Mandate The 'integration mandate' of the Americans with Disabilities Act requires public agencies to provide services "in the most integrated setting appropriate to the needs of qualified individuals with disabilities."

20. In the Olmstead Decision said Justice Ginsburg said Title II of the ADA requires states “… to place persons with mental disabilities in community settings rather than in institutions when: • the State’s treatment professionals have determined that community placement is appropriate, • the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated…”

21. Reasonable Accommodations Under the ADA • A reasonable accommodation is any modification or adjustment that will enable a qualified person with a disability the same benefit equal to that of a person without a disability. • If a public entity can demonstrate that a particular modification would fundamentally alter the nature of its service, program, or activity, or it would cause an undue financial hardship it is not required to make that modification. However, it should look to another accommodation that would not be a hardship.

22. Reasonable Accommodation • Costs of reasonable accommodations cannot be charged to persons with disabilities. • Individuals with disabilities cannot be required to accept separate benefits.

23. Fundamental Alteration or Undue Burden Factors in the Olmstead Decision - The resources available to the State and the needs of others with mental disabilities. Must make reasonable modifications in policies, practices and procedures unless it would fundamentally alter the nature of the goods and services offered or cause an undue financial or administrative burden

24. Title II Enforcement • Most public entities are required to have a grievance procedure available. • An individual or class can file an administrative complaint with a Federal agency or file a lawsuit in Federal district court. • DOJ may intervene

25. Section 504 of the Rehabilitation Act of 1973 • Prohibits discrimination in federally funded programs. • “No otherwise qualified person with a disability . . . shall . . . be denied access to, or the benefits of, or be subjected to discrimination under any program or activity provided by any institution receiving federal financial assistance.”

26. Undue Hardship While the part 41 regulations do not define "undue hardship," other § 504 regulations make clear that the "undue hardship" inquiry requires not simply an assessment of the cost of the accommodation in relation to the recipient's overall budget, but a case-by-case analysis weighing factors that include:

27. Undue Hardship • the overall size of the recipient's program with respect to number of employees, number and type of facilities, and size of budget; (2) the type of the recipient's operation, including the composition and structure of the recipient's workforce; and (3) the nature and cost of the accommodation needed. 28 CFR § 42.511(c) (1998); see 45 CFR § 84.12(c) (1998). Olmstead v. L. C. by Zimring, 527 U.S. 581 (1999).

28. Sovereign Immunity • (1) a state shall not be immune under the Eleventh Amendment… from suit in Federal Court for a violation of section 504 of the Rehabilitation Act of 1973…, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.” 42 U.S.C. § 2000d-7(a).

29. Section 504 Discrimination • “Handicapped persons may require different treatment in order to be afforded equal access to federally assisted programs and activities, identical treatment may, in fact, constitute discrimination.” • 41 F.R. 20296 (May 17, 1976).

30. Contact Information Disability Rights North Carolina 2626 Glenwood Avenue Suite 550 Raleigh, NC 27608 919.856.2195 877.235.4210 888.268.5535 TTY 919.856.2244 fax www.disabilityrightsnc.org