Americans with Disabilities Act: Public Entities Must Comply

More than 55 million people in America have physical or mental disabilities that substantially limit a major life activity. In 1990, the Americans with Disabilities Act (ADA) became law to help protect this population and ensure they receive the same rights as everyone else.

This law was especially important for the public sector because it provided guidelines to ensure no program, service or activity discriminates against or excludes anyone based on disability. The U.S. Department of Justice enforces and regulates these guidelines, which are specific to state and local governments and are listed under Title II of the ADA.

Title II requires public entities officials to take an active role in ensuring their local government is up to code. By doing so, they help eliminate unintentional discrimination which may result in providing programs, services or activities. All public entities should review ADA compliance annually.

Typically, a public officials liability insurance policy covers exposure to a lawsuit for failing to meet ADA standards for community members. Despite such coverage availability, some costs—including those pertaining to physical alterations or improvements necessary to comply with the ADA—are generally excluded and uninsurable. Public officials liability insurance provides liability coverage for the errors & omissions of public officials, employees and the public entity itself.

In addition to recommending and reviewing this coverage with your public entities clients, how can you provide added value as an independent agent? Know Title II requirements—at least the big ones—and encourage your clients to take the following steps in order to ensure ADA compliance:

Provide effective communications tools. One of the major requirements under Title II is for public entities to provide effective communications tools for individuals with disabilities. This includes providing both services and auxiliary aids when necessary to ensure individuals with disabilities can understand what is said or written and communicate in response.

Providing effective communications tools might mean making a Telecommunications Device for the Deaf or other relay service available when a person with a hearing impairment calls city or county offices.

Enhance accessibility. Providing additional services and auxiliary aids is not only necessary, but vital in maintaining accessible features for those with disabilities. Accessible features to consider include entrances, alternate paths of travel, bathrooms, telephones, drinking fountains and parking. Without many of these accessible features, your public entities client may be at risk for complaints or claims.

Raise awareness. Public entities are also required to provide notice about ADA provisions. Although the law does not outline exact specifications, public entities can post notice with signage, information on a website, broadcasts via television or radio, or printed publications such as brochures.

Play their part. The notion that public entities are exempt from complying with Title II requirements for being grandfathered in or because they are a smaller entity is a misconception. Entities with programs or facilities that existed before the ADA and Title II must still make modifications to comply.

Buildings registered under the National Register of Historical Places may not have to make structural changes if those changes affect the historical significance. However, if the public entity cannot make structural changes to accommodate entry for those with disabilities, it must determine alternative solutions.

Additionally, if a public entity has 50 or more employees, it must also meet the following requirements:

  • Designate at least one employee responsible for ADA coordination.
  • Create a plan for handling complaints.
  • Develop a transition plan if structural changes are required for program accessibility.
  • Retain a self-evaluation for three years.

Title II of the ADA, as amended Sept.15, 2010, lists the specific requirements public entities must follow in order to comply with Title II.

Bradley York is vice president at OneBeacon Government Risks.