National Association of Adult Protective Services Conference

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National Association of Adult Protective
Services Conference
ADA Accessibility for Older Americans with
Disabilities By Evelyn Dacalos Gay Elder Rights
Project GA. Legal Services Program Senior
Paralegal (non-atty)
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A. Purpose of the ADA

• To eliminate isolation and segregation of people
  with disabilities.
• Because incidents of disability increase
  dramatically after the age of 60, the age group
  with the highest proportion of people protected
  by the ADA are elders.

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2. To promote equal opportunity a. Qualified
people with disabilities must be afforded equal
opportunity to participate and
benefit... b. in employment, transportation,
and telecommunications programs, services
and facilities of state and local
government, private businesses, and
non-profit organizations that provide
goods, services and activities in facilities
open to the public.
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c. When necessary to provide equal access to
goods and services, auxiliary aids and services
must be provided, physical barriers must be
eliminated, and reasonable modifications must
be made to policies and procedures.
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• Brief Legislative History
• Senate Bill S. 933, "Americans with Disabilities
  Act of 1990," was signed into law on July 26,
  1990 (Public Law 101-336).
• Titles II (Public Services) and III (Public
  Accommodations) became effective January 26,
  1992.
• Title I became effective July 26, 1992, for
  employers with 25 or more employees, and July
  26, 1994, for employers with 15 or more
  employees.

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• Relationship to Other Laws
• The ADA does not limit the rights, remedies, or
  protections available under other federal or
  state laws that provide greater protections than
  the ADA.
• ADVOCACY TIP In Swanks v. Washington
  Metropolitan Area Transit Authority, No. 96-708
  (D.C. Cir. June 20, 1997), the court held that a
  successful application for Social Security
  disability benefits does not automatically
  prevent someone from succeeding in an ADA
  employment discrimination suit. 42 U.S.C 12201

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• Who is Protected and Who is Not
• Three Part Definition of Disability
• 1. Having a physical or mental impairment
  that substantially limits one or more major life
• activity
• 2. Having a history or record of such
  impairment
• 3. Being regarded as having such impairment

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Who is Protected and Who is Not cont B. Part
One of Definition Having a Physical or Mental
Impairment 1. A physical or mental
impairment is a. any physiological disorder or
condition, anatomical loss, or cosmetic
disfigurement affecting one or more major body
system, or b. any mental or psychological
disorder such as mental retardation, dementia,
organic brain syndrome, mental illness,
Alzheimer's disease.
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Who is Protected and Who is Not cont 2. Major
life activities include, but are not limited
to, caring for oneself, performing manual
tasks, walking, seeing, hearing, speaking,
breathing, learning, working. 28 C.F.R.
Part 35, App. A
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Who is Protected and Who is Not cont 3.
Substantially limits means significantly
restricted in condition, manner or duration of
performance in comparison to average person in
general population b. factors determining
substantial limitation 1) nature and severity
of impairment 2) duration or expected
duration 3) impairments that substantially by
limit major life activities are disabilities
without regard to effect of mitigating measures
such as medication or adaptive devices. 28 C.F.
Part 36, App B
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• Who is Protected and Who is Not cont
• C. Part Two of Definition Having a History or
  Record of Impairment
• Having a history of an impairment in the past
  that no longer exists (e.g., a person with a
  history of cancer that has been cured)
• Having a record of being misclassified as having
  an impairment (e.g., an immigrant whose records
  include a misdiagnosis of mental retardation when
  he or she attended school before learning
  English)

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Who is Protected and Who is Not cont... Part
Three of Definition Regarded as Having an
Impairment 1. Having an impairment which does
not substantially limit major life activity but
is treated by others as if it does (e.g., an
individual's minor impairment in manual
dexterity is treated by prospective employer as
major limitation and job is denied)
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Who is Protected and Who is Not cont 2.Having
an impairment that is substantially limiting only
because of attitudes of others (e.g., person is
excluded from senior center because facial
scarring makes others uncomfortable)
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Who is Protected and Who is Not cont.. 3.
Having no impairment of any kind but being
believed to have one (e.g. rumor that person
has AIDS results in denial of service at a
restaurant) 28 C.F.R. Part 35, App. A,
Part 36, App. B
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• Who is Protected and Who is Not cont.
• E. Persons Not Covered Under Definition of
  Disability
• Personal characteristics such as hair or eye
  color cultural, social, or economic
  disadvantage age pregnancy poor judgment or
  quick temper are not disabilities.

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Who is Protected and Who is Not
cont. 2. Exceptions to definition of disability
specified in the a. homosexuality and
bisexuality, transvestitism, pedophilia,
exhibitionism, voyeurism b. gender identity
disorders not resulting from physical impairment
and other sexual behavior disorders c.
compulsive gambling, kleptomania, pyromania 42
U.S.C. 12211
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• Who is Protected and Who
• is Not cont.
• Individuals currently illegally using drugs are
  not protected.
• a. Illegal drug use is use of drugs listed in
  Controlled Substance Act unless prescribed or
  supervised by licensed health professional or
  other authorized party.
• b. Individuals currently illegally using drugs,
  if otherwise qualified, cannot be excluded from
  health services or from drug rehabilitation
  programs.

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Who is Protected and Who is Not cont c.
former drug users,not currently engaged in
illegal use, are protected under ADA. d. use
is not current if a supervised
rehabilitation program has been completed or if
user has rehabilitated him or herself. e. to
be considered rehabilitated, individual cannot
have illegally used drugs recently enough to
justify a reasonalble belief that use is an
ongoing problem. 42 U.S.C. 12210
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• Who is Protected and Who is Not cont
• F. Other Considerations
• Alcohol is not a controlled substance, and
  alcoholism is a disability protected by ADA.
• a. Employers may require sobriety in the
  workplace.
• b. Intoxicated individuals may be excluded
  from programs and activities if their
  behavior is disruptive.

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Who is Protected and Who is Not cont 2.
Behavior is not protected if it results in a
direct threat to the health and safety of
others. a. determination of direct threat must
be individual b. based on facts, not myths or
stereotypes
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• Who is Protected and Who is Not cont...
• Must take into account
• 1) nature, severity, and duration of threat
• 2) whether probability injury will occur is
  substantial
• 3) exclusion based on improbable "worst case
  scenarios generally not allowed
• 4) mitigating measures to reduce or eliminate
  threat must be considered

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• Who is Protected and Who is Not cont
• 3. Essential health and safety requirements are
  permitted.
• a. safety requirement OK if factual and
  necessary to operation of
• b. example a recreation program requires
  ability to swim for rafting

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4. Manifestations of disability that
interfere with operation of program need
not be tolerated. a. interference must be
substantial, not simply the preference of an
entity or the public. b. means of mitigation
must be considered. c. example person with
dementia who vocalizes loudly and continually
could be excluded from chamber music performance
if no mitigating measures are effective.
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Who is Protected and Who is Not cont G.
Association 1. Friends, family, co-workers,
service providers and others are protected from
discrimination because of their association with
persons who have disabilities a. example a
volunteer in an AIDS hospice program cannot be
excluded from a private gymnasium because of
association with persons with AIDS.
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Who is Protected and Who is Not cont b.
example a public school cannot refuse to allow
a theater company to use its auditorium because
the company performed for a group of AIDS
advocates. 2. If a public entity discriminates
against an individual with a disability and
his/her associates on the basis of that person's
disability, both the individual and his/her
associates have a right of action under the
ADA. 42 U.S.C. 12182(b)(1)(E) 28 C.F.R.
35.130(8)
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• Title III of the ADA
• Who Must Comply With Title III?
• 1. Any public accommodation must comply with all
  relevant requirements of Title III.
• 2. Commercial facilities must comply with
  accessibility requirements for new construction
  and alterations.
• 3. Private entities offering examinations and
  courses related to licensure or certification for
  educational, professional, or trade purposes must
  comply. 28 C.F.R. 36.104

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Title III of the ADA Cont B. Public
Accommodation 1. Public accommodation a
private entity that owns, leases, leases to, or
operates a place of public accommodation 2.
Place of public accommodation a facility
operated by a private entity a. whose
operations affect commerce and that falls
within at least one of the following twelve
categories 1) inn, hotel, or other place
of lodging unless five or fewer units for
rent or hire and occupied by proprietor as
residence
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Title III of the ADA Cont 2) establishment
serving food or drink 3) place of exhibition
or entertainment 4) place of public
gathering 5) sales or rental establishment
6) professional office of a health care
provider, hospital, or other service
establishment 7) station used for specified
public transportation
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Title III of the ADA Cont 8) place of
public display or collection 9) a park, zoo,
amusement park, or other place of
recreation 10) place of education 11)
social service center establishment 12) a
gymnasium, health spa, bowling alley, golf
course, or other place of exercise or
recreation
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• Title III of the ADA Cont
• If a private business is a place of public
  accommodation only in part or on occasion, the
  ADA applies to the part of the facility and at
  the times when it functions as a place of public
  accommodation (e.g., a manufacturing plant may
  offer tours to the public in limited parts of the
  facility a warehouse may conduct an
  endof-season sale).
• 42 U.S.C. 1218(7) 28 C.F.R. 36.102

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Title III of the ADA Cont C. Who is
Exempt? 1. Private clubs not subject to Title II
of the Civil Rights Act of 1964 are
exempt. 2. Religious organizations or entities
controlled by religious organizations are
exempt. a. even if activities carried out by a
religious organization would otherwise make
it a public accommodation, the activities are
still exempt.
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Title III of the ADA Cont b. test is
whether religious organization operates the
accommodation or controls the service, not
whether service is open to general
public. c. if a public accommodation leases
from a religious organization, the public
accommodation is subject to Title III, but
the religious organization is not.
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Title III of the ADA Cont D. General
Non-Discrimination Requirements 1. must afford
people with disabilities equal enjoyment of
goods, services and facilities 2. cannot deny
opportunity to participate and benefit directly
or indirectly through contract, licensure, or
other arrangement 3. cannot provide a benefit
that is not equal to the benefit afforded
individuals who do not have disabilities
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Title III of the ADA Cont 4. cannot use
eligibility criteria that tend to screen out
persons with disabilities, unless the criteria
are necessary to the provisions of services 5.
cannot assess surcharge for barrier removal,
auxiliary aids, or modifications to policies or
procedure 6. cannot require individual to
accept accommodation or aid if individual
chooses not to
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Title III of the ADA Cont E. Reasonable
Modifications 1. Covered entity must make
reasonable modifications to policies, practices,
or procedures if necessary to afford equal
opportunity to persons with disabilities. (For
example, a restaurant must allow person with
disability to bring a service dog into the
facility.) 2. Modifications do not need to be
provided if the result is an undue
administrative or financial burden or a
fundamental alteration to the program or
activity. 28 C.F.R. 36.302
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Title III of the ADA Cont F. Prohibition
Against Retaliation 1. Entity cannot
discriminate against individual who has opposed
a practice, or made a charge, testified, or
assisted investigation under the ADA. 2. Entity
cannot intimidate, threaten, coerce or interfere
with individual exercising rights under the
ADA. 28 C.F.R. 36.206
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Title III of the ADA Cont G. Effective
Communication 1. Public accommodation must
provide auxiliary aids and services when needed
for effective communication with persons who
have limited hearing, vision or speech. 2.
Auxiliary aids are not required if result is a
fundamental alteration to a program or activity
or an undue administrative or financial
burden. 3. TTY must be provided if patrons are
offered opportunity to make outgoing phone calls
on more than an incidental basis, (e.g., health
care facility that provides telephones in
patient's rooms must make TTY available.
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• Special ADA Issues for Older Persons
• Nursing Home Issues
• 1. admission practices that end to exclude
  people with certain disabilities, like
  Alzheimer's disease
• 2. requiring residents with certain disabilities
  to live in special care units and not giving them
  the choice to reside in the facility with
  residents with various needs
• 3. transferring or discharging residents rather
  than accommodating their special needs
• 4. precluding residents from participating in
  certain activities because of their disabilities

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Special ADA Issues for Older Persons Cont B.
Medicaid and Other Public Benefits Issues 1.
inaccessible application sites and other barriers
to application for benefits 2. notices
concerning eligibility and due process rights
that are written or explained in words or
formats not understood by people with
communication or cognitive disabilities 3.
inaccessible public hearings to consider changes
to eligibility and other rules 4. coverage and
eligibility requirements that end to preclude
some people with disabilities from receiving
needed benefits or services
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Special ADA Issues for Older Persons Cont C.
Access to Health Care Issues 1. health care
providers refusing to treat people with certain
disabilities, such as tuberculosis, AIDS,
deafness 2. denial of medical services to an
individual with disabilities on the basis of
those disabilities, (e.g., refusing to provide
physical therapy to a nursing home resident who
also has cognitive impairments) 3. lack of
accessibility to facilities of health care
providers
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Special ADA Issues for Older Persons Cont D.
Barriers for People With Cognitive
Impairments 1. difficulties in application
processes, e.g., public benefits 2.
prejudice and labeling
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Special ADA Issues for Older Persons Cont
E. Housing Issues 1. zoning and licensing
requirements for group homes that tend to
discriminate against people with disabilities
a. Decisions based on responses to
neighbor notifications if they tend to
screen out/preclude homes for persons with
disabilities b. Safety requirements that are
too broad
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Special ADA Issues for Older Persons Cont 2.
policies in assisted living facilities that
adversely impact people with disabilities a.
Limitations and restrictions on the use of
wheelchairs in dining rooms b. Restrictions on
the use of wheelchairs in dining rooms
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Special ADA Issues for Older Persons Cont F.
Adult Guardianship Issues 1. court procedures
that make it difficult for the respondent and/or
witnesses with disabilities to participate in
the hearing to determine whether a guardianship
should be imposed 2. notices and other court
documents that cannot be read and/or understood
by the respondent 3. poor accessibility of court
house
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• Special ADA Issues for
• Older Persons Cont
• G. Access to Administration on Aging Funded
  Programs
• 1. lack of access to the facilities
• 2. policies that tend to exclude people with
  disabilities from participation, (e.g., providing
  separate nutrition sites for frail older persons
  and for the "weld elderly")

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Model Problems 1. Dorothy Good daughter takes
her mother to a Fan Sea Restaurant for lobster
on Mother's Day. Mother, who has Alzheimer's
disease, starts talking loudly and interrupting
the waiter while he is taking their order.
Between the appetizer and salad mother starts
wandering around the restaurant talking to other
customers. This causes the Maitre D' to ask
Dorothy and her mother to leave, stating that
they are annoying other customers and that
Mother's wandering is causing a safety hazard.
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Model Problems Cont 2. Thelma and Louise go to
the Bijou to see a rerun of their favorite
Ronald Reagan movie. As a result of a car
accident, Thelma uses a wheelchair and Louise is
hearing impaired. The owner of the Bijou refuses
to let Thelma in with her wheelchair, claiming
there is no wheelchair seating. He tells Louise
that he cannot afford a system for sound
augmentation for people with hearing impairments
because the Bijou is losing money and the system
costs too much. Thelma and Louise, who follow
local business news, know that the owner
operates a very profitable chain of movie
theaters across the state.
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Model Problems Cont 3. Roger calls the local
ombudsman program in a panic. His father, who
has Alzheimer's disease, has been admitted to
Happy Camper Nursing Facility. The director has
told Roger that his father can only be cared for
in the Special Alzheimer's Unit. The Special
Unit would cost Roger's father an additional
200.00 per month, making it difficult to meet
the cost of his care. In addition, Roger's
father wanted to be placed in the Happy Camper
to be with his friend, Fred. Placement in the
Special Unit would mean that Roger's father and
Fred would not be together.
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Model Problems Cont 4. Sally's children gave
her a motorized cart for her birthday so she
could get around her adult congregate living
community more easily. One week after she began
using her cart, management posted signs saying
that motorized carts could not be used in dining
areas and on common walkways.
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Model Problems Cont 5. Charles McGreed was
served with notice that his children want to
become the guardians of his property. Mr.
McGreed wants to participate in the proceeding
so he can give the judge and his children a
piece of his mind. However, he is totally
bedridden and is unable to get to the
courthouse.  
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Model Problems Cont 6. All county services
in Small County are housed in the Small County
Town Hall. The Town Hall is the county's oldest
building and has been designated an Historical
Landmark by the state. In order to enter the
building, residents must climb a steep, wide
flight of stairs which adds to the beauty of the
building. There is another entrance around the
back. People who use it enter into the basement,
and then must take an elevator up to the first
floor. Small County wants to ensure that their
facility is accessible, but they do not want to
destroy the historical features of their
building. What can they do?
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• Model Problems Cont
• 7. The Area Agency on Aging for Large County is
  planning to hold hearings in three locations to
  determine priorities for their upcoming fiscal
  year. In order to comply with the ADA, they are
  planning to offer the services of a sign-language
  interpreter and to make written documents
  available in alternative formats. One location,
  however, is on the second floor of a building
  without an elevator. Will they be in violation of
  the ADA if they continue to use this site?

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Model Problems Cont 8. Mrs. V. is paralyzed
on her right side as a result of a stroke.
She would like to participate in the
meals program at the local senior center,
but she needs someone to feed her. Are senior
center staff obligated to feed her so that she
can participate in the program?
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• Model Problems Cont
• 9. Mr. Tidy, a daily participant at Small County
  Senior Center, is becoming incontinent. Mrs.
  Bossy has gone to the Director of the Area Agency
  on Aging as representative of the other
  participants at the senior center and has asked
  the director to tell Mr. Tidy and his family that
  he can no longer attend senior center programs.
  If the director doesn't take any steps, Mrs.
  Bossy says, she and the other participants will
  leave the program and complain to their
  Congressman about the misuse of Administration on
  Aging funds.
• What can the director do?

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Model Problems Cont 10. Small County Area
Agency on Aging is implementing an Information
and Referral Service as required under the Older
Americans Act. They plan to develop a directory
of local service providers and consumer
brochures explaining their services. They also
will be answering questions and making referrals
through a new telephone hot line. They want to
comply with the ADA, but they have a very
limited budget. What can they do?
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Model Problems Cont Law reform potential -- The
ADA is the nation's first comprehensive civil
rights law for persons with disabilities. Some
people with disabilities and their advocates may
fear the loss of hard- won rights or an imbalance
of power in dispute resolution methods other
than litigation. They may seek litigation to set
precedents that could In turn affect large
numbers of persons with disabilities.
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• Where Should I Seek Help?
• The ADA gives people who believe they are the
  subject
• of discrimination choices about where to get
  help. Under Title II, someone seeking redress
  against a state or local government can
• Go through the internal agency grievance
  procedure (for agencies with 50 or more
  employees)
• Use a dispute resolution mechanism available
• through a community dispute resolution center
• File a complaint with the appropriate federal
• Agency

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• Where Should I Seek Help? cont.
• Under Title III, someone seeking redress
• against a business open to the public can
• use a dispute resolution mechanism
• available through a community dispute
• resolution center
• file a complaint with the Department of
• Justice
• file a case in state or federal court

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THE END