Title II Guidelines

Table of Contents

Introduction

Section I - Overview

Section II - General Requirements

Section III - Program Accessibility & Auxiliary Aids and Services

When Are We Required to Provide Auxiliary Aids and Services?
How Do You Determine What is a Reasonable Auxiliary Aid or Service?
Documentation of Need for Auxiliary Aids and Services
Existing Facilities

Section IV - Courtesies for Effective Communication
General Hints
Reception Hints

Section V - Enforcement and Remedies
Designating a Responsible Employee
Adopting Grievance Procedures

Glossary

Appendix A - Recognizing Physical or Mental Impairments

Appendix B - Mental Illness and Mental Retardation

Appendix C - Examples of Auxiliary Aids and Services

Appendix D - More Examples of Courtesies

Appendix E - Sample Grievance Procedures

Appendix F - Policy on Court Real-Time Transcription Services for Persons Who Are Deaf or Hard of Hearing

Appendix G - Proposed Guidelines for Provision of Interpreters for Persons With Hearing Impairments

The Americans with Disabilities Act (ADA) of 1990 was enacted to ensure that all qualified individuals with disabilities enjoy the same opportunities that are available to persons without disabilities. Equalizing opportunities is of paramount importance to the everyday operations of the judiciary.
Courthouses are traditionally designed to instill reverence for justice. This is often reflected in large columns, heavy doors, many steps, and other features that may impede accessibility. The Supreme Court of Florida has produced these guidelines to assist judicial officers and courthouse personnel in understanding the public entity provisions of the ADA (Title II) and to assist them in ensuring that architectural or communication barriers do not obstruct any person's access to the courts. Included are a practical summary of Title II of the ADA and an overview of accessibility requirements. Additionally, this guide contains information pertaining to recognizing and accommodating individuals with disabilities. The Supreme Court of Florida recommends that each district court and judicial circuit educate its employees on important ADA requirements.
The ADA Coordinator for the State Courts System is Ms. Debbie Howells, Executive Assistant to the State Courts Administrator; telephone: (850)922-4370; e-mail: howellsd@flcourts.org; fax: (850)488-0156. Ms. Howells is available to provide technical assistance to judicial officers and court employees. In addition, each district and circuit court has designated a Local Court ADA Coordinator to assist judges as well as individuals with disabilities who need access to court services and programs. Local Court ADA Coordinators can be contacted through the marshals' offices in the district courts of appeal or the trial court administrators' offices in the circuit courts.
This printing of this document was made possible by a grant from The Florida Bar Foundation, with funds provided by Florida's Interest on Trust Accounts Program.
The following staff members of the Supreme Court of Florida, Office of the State Courts Administrator, assisted in the production of these guidelines:
Deborah Githens, Copywriting
Debbie Howells, Copywriting & Editing
Blan L. Teagle, Editing
Jason Williams, Production Assistant
Upon request by a person with a disability, this document will be made available in audiotape, braille, large print, or electronic file on computer disk. To order this document in one of these alternate formats, please contact the ADA coordinator, Office of the State Courts Administrator, 500 S. Duval Street, Tallahassee, Florida 32399-1900, (850) 922-4370.

The Americans with Disabilities Act of 1990 provided a national mandate to end discrimination against individuals with disabilities. Under Title II of the Act, no qualified individual with a disability shall be discriminated against, or excluded from participation in or benefits of the services, programs, or activities of a public entity. The Act directly affects state courts as providers of public programs and services.

Public Services Regulated
* All activities of executive agencies
* All activities of the legislative branch
* All activities of the judicial branch
* All governmental activities of public entities even if performed by a contractor
* All services, programs, and activities involving general contact with the public as an everyday occurrence (telephone services, walk-in services, etc.)

Who Is Protected by Title II?
* All qualified persons with disabilities
* All qualified individuals with a record of a disability
* All qualified individuals who are regarded as having a disability
* All qualified individuals who have an association or relationship with an individual who has a disability

Who Is Not Protected by Title II?
People suffering from temporary, non-chronic impairments or conditions of short duration with little or no permanent impact are not covered by Title II. Some examples include:
* Broken limbs
* Pregnancy
* Sprained joints
* Concussions
* Appendicitis
* Influenza

Additionally, some permanent conditions are not covered by Title II, including:
* Physical characteristics, such as eye or hair color, left-handedness, strength, height or weight (within normal range)
* Common personality traits, such as quick temper or poor judgment (excluding those personality traits which are symptoms of psychological disorder)
* Environmental, cultural, or economic characteristics (poverty, lack of education, illiteracy, or prison record)


Who Is an Individual with a Disability?
A person who has a physical or mental impairment that substantially limits a major life activity, has a record of such an impairment, or is regarded as having such an impairment is an individual with a disability.

Who Is a Qualified Individual with a Disability?
A person with a disability who, with or without auxiliary aids or services, meets the essential eligibility requirements for receiving services or participating in programs or activities provided by a public entity.

What Is a Physical or Mental Impairment?
A physical impairment is any physiological disorder, condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems:
* neurological
* musculoskeletal
* special sense organs
* skin
* cardiovascular
* endocrine (hormonal)
* reproductive
* digestive
* genito-urinary
* respiratory (including speech organs)
* hemic and lymphatic (bloodstream)

A few examples of physical and mental impairments are:
* visual impairments
* epilepsy
* heart disease
* psychological disorders
* mental retardation
* HIV infection/AIDS
* speech and hearing impairments
* cancer
* learning disabilities
* diabetes
* mobility impairments

For further examples, see Appendix A.
A mental impairment is any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. While retardation is not a mental illness, it is possible for an individual who is mentally retarded to also have a mental illness. For more information on distinguishing mental retardation from mental illness, see Appendix B.

A public entity is required to provide necessary auxiliary aids and services for qualified individuals with disabilities to ensure effective communication and participation in its services, programs, and activities. Qualified individuals with disabilities should have the same quality of opportunity offered to persons without disabilities in the most integrated setting possible. An entity may not charge a fee or surcharge on an individual with a disability (or group of persons with a particular disability) to cover the costs of making the program or service accessible.

Guidelines
* Offer qualified individuals with disabilities equal opportunities that provide the same quality result as that provided to others.
* Opportunities offered to individuals with disabilities should be essentially the same as those offered to others. If an auxiliary aid or service is necessary to provide individuals with disabilities with the full benefit of the service, the auxiliary aid or service should be offered in the most integrated setting possible.
* Adopt policies that do not automatically disqualify individuals with disabilities. (For example, making a driver's license the only acceptable means for identification discriminates against individuals whose disabilities prevent them from driving.)

A public entity should give primary consideration to the auxiliary aid or service
requested by the individual with the disability:
* Always consult the person with the disability as the first step in evaluating the need for auxiliary aids and services.
* Work with the person with a disability to identify appropriate auxiliary aids and services and in considering alternatives. Often, by inquiring about what auxiliary aid or service is most effective for that person, one may learn a simple, inexpensive method of accommodation.
* Consider the preference of the individual with a disability and select the auxiliary aid or service that best serves the needs of the individual and fulfills the purpose of the service or program.
* Ensure that equal benefit or enjoyment of the program can be obtained when the auxiliary aid or service is provided.
* Ensure that effective communication occurs.
* Realize individuals may decline a special accommodation and choose to participate in the opportunity in the same manner as the general public.

Whether a public program or service is accessible to persons with disabilities does not always turn on whether the person can physically enter the building. In courthouses, heavy doors and long stairways are not the only barriers for persons with disabilities. Some barriers one may encounter in a courthouse are:
* Too little parking for persons with disabilities
* Narrow hallways and doorways
* Witness box inaccessible to wheelchairs
* Judge's bench too high to be accessible for persons using wheelchairs
* Poor lighting that inhibits participation for hearing impaired persons who rely on information they can see
* Public information counters too high for persons using wheelchairs
* Microphones too difficult to reach or manipulate for persons with disabilities


Methods of Compliance
* Architecturally renovating facilities to make them readily accessible to and usable by an individual with disabilities
* Relocating a service to enable a person with a disability to participate
* Obtaining or modifying equipment or devices (including TDDs, FM receivers, videotext displays, and publishing materials in braille and large print)
* Providing qualified readers and interpreters
* Providing reserved parking for a person with a mobility impairment
* Allowing a person with a disability to provide equipment or devices that the public entity is not required to provide


When Are We Required to Provide Auxiliary Aids and Services?
When services, programs, or activities are available to others and inaccessible to a person with a disability who is otherwise qualified, a public entity must provide appropriate auxiliary aids and services to ensure effective communication and participation by that person. The person with a disability will generally request an auxiliary aid or service if needed. All requests must be documented and maintained in a separate and confidential file by the designated ADA coordinator. If physical access to a court facility is not feasible administratively or financially, however, the entity may comply with the ADA by making its services available in another fashion. For some examples of auxiliary aids and services, see Appendix C.
There may be a few situations in which a court will not be required to provide a requested auxiliary aid or service. If a judicial officer or court personnel believe the requested auxiliary aid or service would result in a fundamental alteration in the nature of the program or service, or that an undue burden would result, the ADA coordinator should be notified immediately. The head of the entity (the chief judge or the chief judge's designee) has the responsibility to prove either fundamental alteration or undue burden. This determination shall be made in writing after considering factors such as: substantial disruption, extensive financial hardship, and fundamental change in the nature of the service. Since state government is such a large public entity, proving the defense of undue burden may be very difficult. Even after determining that a particular auxiliary aid or service would result in a fundamental alteration or undue burden, the public entity remains obligated to take any other action that will not result in the alteration or burden, but will nevertheless ensure that a person with a disability receives the benefit or service offered.

How Do You Determine What Is a Reasonable Auxiliary Aid or Service?
When determining whether requested auxiliary aids and services are reasonable, let common sense be your guide. In evaluating a request for an auxiliary aid or service, the first step should always be to consult the individual with the disability. Work with that person to identify appropriate auxiliary aids or services. If you have thoughtfully considered and discussed all the options, chances are you will come up with an appropriate solution. Nevertheless, when a request for an auxiliary aid or service is made, you should notify the ADA coordinator of your court. When necessary, the ADA coordinator will consult resource materials, talk to disability experts, and prepare a recommendation for approval by the presiding judge.

Documentation of Need for Auxiliary Aids and Services
You may request documentation of functional limitations to support the individual's request for auxiliary aids and services. Copies of requests for auxiliary aids and services, approvals or disapprovals, and a description of any auxiliary aids and services provided should be given to the local ADA coordinator and maintained in a separate, confidential file.

Existing Facilities
The Department of Justice periodically publishes amendments to the Americans With Disabilities Act Architectural Guidelines (ADAAG). Generally, facilities must be accessible to all individuals regardless of disability. Exceptions may be made in the case of undue burdens or altering historical properties. If you believe any area or section of your facility does not comply with the ADA, please inform your ADA coordinator.

At times, communicating with or accommodating a person with a disability may place one in unfamiliar territory. As we do not all share the same life experiences, it may sometimes be difficult to discern the needs, concerns, or sensitivities of an individual with a disability. Most importantly, one should give attention to the person, not the disability. For additional examples of courtesies, see Appendix D.

General Hints
* Avoid catch-all phrases such as "the disabled," "the blind," or "the deaf."
* Avoid using inappropriate emotional descriptors such as "unfortunate" or "pitiful."
* Do not ask how the person became disabled.
* Do not ask about the nature/severity of the disability (unless such inquiry relates to your discussions with the person about an appropriate auxiliary aid or service).
* Use affirmative phrases that put the person first, such as "person who is disabled," rather than "the disabled."
* Relax. Do not be embarrassed if you unintentionally happen to use common expressions, such as "see you later" or "got to be running along," that seem to relate to a person's disability.
* In order to facilitate conversation, be prepared to offer a visual cue to a person who is deaf or hard of hearing, or an aural cue to a person who is visually impaired, especially when more than one person is speaking.


Reception Hints
* Know where accessible restrooms, drinking fountains, and telephones/TDDs are located. If such facilities are not available, be ready to offer an alternative (e.g., other restrooms, a glass of water, your desk phone).
* When introduced to a person with a disability, it is appropriate to offer to shake hands.
* Shaking a left hand is appropriate.
* For those who cannot shake hands, touch them on the shoulder or arm to acknowledge their presence.
* Never patronize persons using wheelchairs by patting them on the head or shoulder.
* When addressing a person who uses a wheelchair, never lean on the person's wheelchair. The chair is a part of the space that belongs to that person.
* When talking with a person who has a disability, look at and speak directly to the person, rather than looking at or speaking to a companion or interpreter.
* Offer assistance in a dignified manner with sensitivity and respect. Be prepared to have the offer declined. Do not proceed to assist if your offer to assist is declined. If the offer is accepted, listen to or ask for instructions.

Designating a Responsible Employee
The Americans with Disabilities Act requires every public entity with fifty or more employees to designate a responsible employee to serve as the ADA coordinator and to adopt formal grievance procedures. Though some courts do not have fifty employees, designating such a coordinator facilitates implementation of the ADA statewide. The name, work address, and work phone number of the designated employee should be available to all interested persons.
The local court ADA coordinator's duties include:
* Coordinating efforts to comply with and carry out the entity's responsibilities under the Americans with Disabilities Act
* Acting as an advisor to whom other employees may direct questions regarding compliance with the Act
* Maintaining information on resources in the community that can be used to accommodate persons with disabilities
* Investigating complaints alleging non-compliance with the Act
* Distributing information regarding compliance with the Act


Adopting Grievance Procedures
Adopting and publishing grievance procedures to resolve complaints advances understanding of the Act throughout the State Courts System. Establishing grievance procedures in each court equips courts with a mechanism to resolve complaints at the local level without resorting to federal complaint procedures. There is an additional requirement to publish adopted grievance procedures for prompt and equitable resolution of all complaints alleging a violation of Title II. The ADA requires that a "complete complaint" be submitted to properly file a grievance. A complete complaint includes:
* Complainant's name and address
* A detailed description of the alleged violation
* Date of the alleged violation
* The desired remedy or solution
* Names of any witnesses who can provide relevant information
* Any other information relevant to an investigation of the alleged violation

For an example of such grievance procedures, see Appendix D.
All persons have a right to pursue complaints of discrimination through the State Courts System's internal complaint procedure or with the United States Department of Justice. To file a formal complaint for an alleged Title II violation, write or call:
U.S. Department of Justice
Civil Rights Division
Coordination and Review Section
Post Office Box 66118
Washington, D.C. 20035-6118
(202) 307-2222 (voice)
(202) 307-2678 (TDD)
The ADA recommends resolving disputes on a local level if possible. Individuals who unsuccessfully pursue local remedies are not prevented from later seeking relief through the U.S. Department of Justice.
The ADA coordinator for the State Courts System is available to assist you in answering questions concerning Title II of the ADA. In addition, your local ADA coordinator has access to a variety of resources that can be used in implementing the ADA.

"Auxiliary Aids and Services"
Any device or aid that is designed to provide effective communication and participation for individuals with disabilities is an auxiliary aid or service. An example of an auxiliary aid or service is a TDD, but the term also includes services such as a sign language interpreter or removing an item from a high shelf for a person with a disability. For further examples of auxiliary aids and services, see Appendix C.

"Fundamental Alteration"
Public entities are required to make reasonable accommodations and provide auxiliary aids and services to any qualified individual who needs them. In rare cases, a certain accommodation will so drastically change the service, program, or activity that the public entity may not be required to make the accommodation. This defense is only available after the chief judge of chief judge's designee has formally concluded in writing that the accommodation would fundamentally change the nature of the service, program, or activity. Financial hardship alone will not relieve a public entity from the responsibility to comply with the ADA. Before refusing a request, the entity must demonstrate the impracticability and hardship of making the accommodation or providing the auxiliary aid or service.

"Major Life Activities"
Under the ADA, an impairment is a "disability" only if it substantially limits one or more major life activities, such as:
* Walking
* Seeing
* Speaking
* Hearing
* Breathing
* Learning
* Performing manual tasks
* Caring for oneself
* Interacting with others
* Working


"Primary Consideration"
Primary consideration should be given to the auxiliary aid or service requested by the individual with the disability. A public entity should endeavor to obtain the requested method of accommodation unless the court can demonstrate that another equally effective accommodation is available or that the means chosen would result in a fundamental alteration in the nature of the service, program, or activity.

"Public Entity"
Public entity refers to any state or local government and all the departments, agencies, or other instrumentalities of that state or local government.

"Reasonable Accommodation"
Any aspect of a program or service that presents a barrier to communication, participation, or accessibility must be modified to ensure a public entity's ability to offer its services or benefits to all members of the public, including persons with disabilities. A reasonable accommodation is a modification or adjustment of a program or service that accomplishes full access to and enjoyment of that program or service. Reasonable accommodations may include anything from providing auxiliary aids and services (such as a qualified interpreter) to modifying existing building structure (i.e. building ramps).

"Regarded as Substantially Limited"
An individual who is perceived to have a substantially limiting condition even when this person does not have a substantially limiting impairment.

"Record of a Substantially Limiting Condition"
An individual who has a history of impairment or who has a record of having been misclassified as having an impairment. For example: an individual who has a history of cancer or heart disease whose illness is cured, controlled, or in remission, or an individual who was erroneously classified as having a learning disability.

"Substantially Limits"
Three factors in determining whether a person's impairment substantially limits a major life activity are: (1) nature and severity of the impairment, (2) its duration or expected duration , and (3) its permanent or long-term impact or expected impact.

"Undue Burden"
An undue financial or administrative burden is not clearly defined in the Americans with Disabilities Act. However, language in Title II indicates that Congress intended the undue burden standard to be significantly higher than "readily achievable." Though a Title III term, "readily achievable" is defined as "accomplished without much difficulty or expense." According to the United States Department of Justice, the readily achievable standard is lower than the undue burden standard in terms of the level of effort required, but the factors used in determining whether an action is readily achievable or an undue burden are identical. Asserting the defense of undue burden will thus require greater showing of hardship than simply that the provision of auxiliary aids or services will be difficult or expensive. If after considering all available resources a determination of "undue burden" is made, the chief judge or chief judge's designee must prepare a written statement explaining such a decision.