Title II/III Interplay Both Title II and III entities have many of - PDF document

ADA Update 2015: 8/22/2015 Public/private contracts and partnerships Public/Private Contracts and Partnerships: How does the ADA apply? 2015 Mid-Atlantic ADA Update Irene Bowen, J.D. President, ADA One, LLC Nancy Greene ADA Title II Compliance Manager Montgomery County (MD 1 Title II/III interplay • Title III covers “public accommodations” (private entities) • A public entity never has to comply with Title III • BUT you can’t “contract away” your title II responsibilities • You’re responsible for third parties acting on your behalf as they carry out your programs – Contractors – Public/private partnerships-formal or informal – Volunteers (individuals or groups) – Transportation providers 2 Title II/III Interplay • Both Title II and III entities have many of the same responsibilities under the ADA but there area key differences • Title II: Program access • Title III- Readily achievable barrier removal • Effective communication, undue burden, and fundamental alteration in both titles 3 Nancy Greene and Irene Bowen 1

ADA Update 2015: 8/22/2015 Public/private contracts and partnerships Black Letter Law • Title II prohibits public entities ( i.e. , “any State [or] local government,” or any “instrumentality” of one from discriminating against persons with disabilities. 42 U.S.C. §§ 12131(1)(A)-(B), 12132. • ADA r egulations: “[a] public entity, in providing any . . . service, may not, directly or through contractual . . . arrangements , [discriminate] on the basis of disability . . . .” 28 C.F.R. § 35.130(b)(1) (emphasis added) 4 Black Letter Law (2) A public entity is obligated to ensure compliance with its title II obligations, even if a private entity provides services on behalf of the state. • Appendices A and B to DOJ regulations 28 C.F.R. Pt. 35, App. A, at 634 (2012); 28 C.F.R. Pt. 35, App. B, at 661 (2012) • DOJ’s Title II Technical Assistance Manual 5 Black Letter Law (3) Federal courts have upheld this fundamental ADA principle: a title II entity is liable for the discriminatory actions of private entities with which it has contracted. • Armstrong v. Schwarzenegger , 622 F.3d 1058, 1062 (9th Cir. 2010)(state prisons) • Henrietta D. v. Bloomberg , 331 F.3d 261, 286 (2d Cir. 2003) (access to public benefits) 6 Nancy Greene and Irene Bowen 2

ADA Update 2015: 8/22/2015 Public/private contracts and partnerships Black Letter Law (4) • James v. Peter Pan Transit Management, No. 5:97-CV- 747, 1999 WL 735173, at *9-10 (E.D.N.C. Jan. 20, 1999)(public bus transit) • Deck v. City of Toledo , 56 F. Supp. 2d 886, 895 (N.D. Ohio 1999) (curb ramps on city streets) • Hunter v. District of Columbia , No. 1:12-CV- 1960 (GK) (D.D.C. August 18, 2014)(homeless shelters) 7 Principles (1) ADA’s general provisions apply to actions of public entity “directly or through contractual, licensing, or other arrangements.” • Equal opportunity • Full and equal enjoyment • Program access • Effective communication • Reasonable modifications • Non-discrimination in choice of contractors 8 Principles (2) More specifically – • Cannot, directly or through contractual or other arrangements, utilize criteria or methods of administration that have effect of – subjecting qualified individuals with disabilities to to discrimination 9 Nancy Greene and Irene Bowen 3

ADA Update 2015: 8/22/2015 Public/private contracts and partnerships Section 504 of the Rehabilitation Act of 1973 • Binds County programs that receive federal financial assistance, including -- • Department, agency, special purpose district, or other instrumentality of a local government • Entity of local government that distributes the assistance and each such department or agency or State/local entity to which the assistance is extended • Applied in same way as ADA • Threat of funding cut-off for noncompliance 10 Section 504 of the Rehabilitation Act of 1973 • County must ensure compliance by sub- recipients • County cannot perpetuate discrimination by providing significant assistance to an agency/organization that discriminates as to beneficiaries of County’s program 11 Ask the ADA Coordinator (1): What would you do? Your Health Department has a contract with a small non-profit group to provide pre-natal care for low income women that includes doctor visits, nutrition counseling, parenting classes and home visits by a nurse. The Health Department does get federal funding for some of its programs but not for this one. A woman who is deaf wants to participate in this program and requests interpreting services. She is told that the non-profit does not have the funds to provide for an interpreter. What laws apply? How would you respond in this case? 12 Nancy Greene and Irene Bowen 4

ADA Update 2015: 8/22/2015 Public/private contracts and partnerships Ask the ADA Coordinator (2): What would you do? A community group plans an annual Octoberfest. Funding for the festival comes primarily from local businesses. It is held on the grounds of a private school. The County’s Recreation Department provides free space weekly for the planning meetings, loans the group a stage and includes the event in its calendar and its logo on the flyer. There is no contract or MOU in place and no actual County funding is provided. Are there ADA considerations here? How should they be handled? 13 Contracts to carry out County programs  Child care  Liquor stores  Transportation  Classes  Mediation  Psychiatric and mental health care for inmates in correction system  Residential drug abuse treatment 14 Contracts that support County programs (as-needed basis, administrative, ancillary services) • Security at events, for County buildings • Public education campaigns • Printing • Food service • Building services 15 Nancy Greene and Irene Bowen 5

ADA Update 2015: 8/22/2015 Public/private contracts and partnerships Web sites • As means of communication with members of the public, websites must be accessible to people with disabilities. • Information, products, registration and other communication must be accessible or available through other means. 16 Ask the ADA Coordinator (3): What would you do? Your town receives a federal grant to run an anti- smoking public education campaign directed at teens. The campaign will include a website, an e- newsletter, and several outreach events. The town decides to contract with a non-profit to run the campaign. The terms and conditions of all of your town’s contracts now include a requirement that the contractor comply with all applicable laws including ADA. Is that provision enough to ensure compliance? If not, what other steps should your town take? 17 Contracts involving Space 18 Nancy Greene and Irene Bowen 6

ADA Update 2015: 8/22/2015 Public/private contracts and partnerships Space • New construction and alterations must be accessible. • A County program needs to be accessible as a whole. • County must meet program accessibility requirements, and space it leases from another entity is part of a program. • If County leases space to private entity, lease document can define respective responsibilities (alterations, auxiliary aids, etc.). • Service/concession agreements: County must ensure private entity operates in way that enables County to meet title II obligations. 19 Leasing (1) If County leases space for its use from private entities, it must -- • Meet its own program accessibility requirements • Look for most accessible space and at least –  Accessible parking (if within lease)  Accessible route from entrance to primary activities  Accessible toilet facilities 20 Leasing (2) If County leases space to private entity, lease document can define respective responsibilities (alterations, auxiliary aids, etc.). • Private entity is subject to title III. • Communication remains joint responsibility under ADA. • Lease of County space doesn’t by itself subject entity to title II. 21 Nancy Greene and Irene Bowen 7

ADA Update 2015: 8/22/2015 Public/private contracts and partnerships Ask the ADA Coordinator (4): What would you do? Your City has two winter shelters for men who are homeless. A third is needed so the City issues a request for proposals. The only proposal received is from a religious congregation offering space in the basement of their building. There is no elevator in the building. Can your City contract with this provider? 22 Ask the ADA Coordinator (5): What would you do? Your County rents an older building to a small business that runs a music program. The business does not receive any funding from the City for their program. An individual who uses a wheelchair tells the manager that he cannot get into the building because there is no ramp from the parking space to the entrance. Another individual has asked for CART services to attend a meeting. The business calls you to request an ramp from the parking lot and asks you to provide a CART provider for the meeting next week. How do you respond? 23 Contracts involving equipment, furniture, technology , 24 Nancy Greene and Irene Bowen 8