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ADA Title II Action Guide for State and Local Governments

Effective Communication

Community meeting with sign language interpreter

Many people with disabilities are prevented from participating fully in programs, activities and services because of communication difficulties. To address this, the ADA requires that communication with people with disabilities must be “as effective” as communication with others. Generally this part of the regulations applies to people who are deaf, people who are hard of hearing, people who are blind, people with low vision and people with speech disabilities. 

Example

  • N.M. has cerebral palsy. His speech is understandable but is slurred, slow and halting. He comes to a city council meeting on a proposed property tax ordinance. Staff and county officials must take the time to listen to N.M, not interrupt him or finish his sentences.

Title II Regulations 28 § 35.160

General:

(a) (1) A public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.

Auxiliary Aids and Services

Often ensuring effective communication requires public entities to provide “auxiliary aids and services” which may include the following:

For people who are deaf or have hearing loss:

  • qualified interpreters on-site or through video remote interpreting (VRI) services

  • real-time computer-aided transcription services  (CART)

  • written materials

  • exchange of written notes

  • typing on a tablet or computer

  • assistive listening devices

  • open and closed captioning, including real-time captioning

  • videophones

  • videotext displays

For people who are blind or have vision loss:

  • large print materials

  • audio recordings

  • Brailled materials

  • screen reader software

  • magnification software

  • notetakers

  • qualified readers

  • optical readers

  • secondary auditory programs (SAP)

For people who have speech disabilities:

  • exchange of written notes or typed communication

  • qualified speech-to-speech transliterators (a person trained to recognize unclear speech and repeat it clearly)

The type of auxiliary aid or service will vary in accordance with the method of communication used by the person; the nature, length, and complexity of the communication and the context in which the communication occurs. What is required to communicate effectively when a person is registering for classes at a public university is very different from what is required to communicate effectively in a court proceeding.

Examples

  • O.L.  is deaf and needs to renew a driver’s license. At the registry of motor vehicles, written notes, texting or typing at a computer, will generally be fine for this situation.

  • Now O.L. attends a hearing to resolve denial of services from a state vocational rehabilitation agency. Qualified sign language interpreters or real-time computer-aided transcription services (depending on O.L.’s request) will probably be needed to ensure effective communication.

Primary Consideration

Public entities are required to give primary consideration to the type of auxiliary aid or service requested by the person with the disability unless they can demonstrate that another equally effective means of communication is available or that the aid or service requested would fundamentally alter the nature of the program, service, or activity or would result in undue financial and administrative burdens. 

The auxiliary aid or service must be effective. If a public entity chooses Video Remote Interpreting (VRI – where the interpreteris [sic] off-site and communication occurs with computer equipment) rather than face-to-face, the public entity must make sure the quality is comparable. The regulations include specific performance standards for VRI.

Title II Regulations 28 § 35.160

Communications General:

(b) (1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford qualified individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity. (2) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. In determining what types of auxiliary aids and services are necessary, a public entity shall give primary consideration to the requests of individuals with disabilities. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.

Companions

In many situations, covered entities communicate with someone other than the person who is participating in the program, service or activity. The ADA refers to such people as “companions” and requires public entities to provide effective communication for companions who have disabilities

Effective communication with companions is particularly critical in health care settings where miscommunication may lead to misdiagnosis and improper or delayed medical treatment. A companion may be legally authorized to make health care decisions on behalf of the patient or may need to help the patient with information or instructions given by hospital personnel. A companion could be designated by the patient to communicate with hospital personnel about the patient's symptoms, needs, condition, or medical history.

Examples

  • A county medical clinic has a patient whose spouse is deaf. The spouse’s preferred means of communication is American Sign Language. To the extent the clinic communicates with spouses, it may need to provide a sign language interpreter to ensure that communication with the spouse is as effective as communication with other spouses.

  • A public school informs parents about field trips by sending print notices home with the students. A parent who is blind may need the information emailed to her so that she can use her screen reading software.

Title II Regulations 28 § 35.160

General:

(a) (2) For purposes of this section, “companion” means a family member, friend, or associate of an individual seeking access to a service, program, or activity of a public entity, who, along with such individual, is an appropriate person with whom the public entity should communicate

In the past (and currently), some public entities have expected a person who uses sign language to bring a family member or friend to interpret. Often people with disabilities have to rely on their children to interpret. Providing sign language interpreters is the public entity’s obligation. The interpreter must be qualified and impartial; specialized vocabulary may be needed to interpret effectively and accurately. A public entity can rely on another person to interpret in two situations.

  1. In an emergency involving an imminent threat to the safety or welfare, an adult or minor child may be relied upon to interpret when a qualified interpreter is not available.

  2. In situations not involving an imminent threat, an adult accompanying someone who uses sign language may be relied upon to interpret when a) the person requests this, b) the accompanying adult agrees, and c) reliance on the accompanying adult is appropriate under the circumstances. This exception does not apply to minor children.

Title II Regulations 28 § 35.160

General:

(1) A public entity shall not require an individual with a disability to bring another individual to interpret for him or her. (2) A public entity shall not rely on an adult accompanying an individual with a disability to interpret or facilitate communication except— (i) In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or (ii) Where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances. (3) A public entity shall not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.

Undue Burden

Public entities are not required to provide an auxiliary aid or service that would fundamentally alter the program, service, or activity or would result in undue financial and administrative burdens. If the choice expressed by the person with a disability would result in an undue burden or a fundamental alteration, the public entity still has an obligation to provide another aid or service that provides effective communication, if possible.

If the requested auxiliary aid or service would result in an undue burden or a fundamental alteration, the public entity still has an obligation to provide another aid or service that provides effective communication, if possible. The decision that a particular aid or service would result in an undue burden or fundamental alteration must be made by a high level official, no lower than a Department head, and must be accompanied by a written statement of the reasons for reaching that conclusion. All resources available for use in the funding and operation of the service, program, or activity must be considered.

Title II Regulations 28 § 35.160

Duties:

This subpart does not require a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens. In those circumstances where personnel of the public entity believe that the proposed action would fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens, a public entity has the burden of proving that compliance with this subpart would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the head of the public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this subpart would result in such an alteration or such burdens, a public entity shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits or services provided by the public entity.

Telecommunication Relay Services (TRS)

Woman who is deaf signing to video relay communication assistant

Telecommunications Relay Services allows people with hearing or speech disabilities to place and receive telephone calls. Public entities’ staff who answer the telephone must treat relay calls like other calls. TRS calls usually take more time than “regular” calls. If you get a call from a relay service don’t hang up! They are not telemarketers.

 

Here are the two most common Telecommunication Relay Services:

Video Relay Service (VRS) is used by people who prefer sign language communication rather than typing.  The person who is deaf signs to the communication assistant who then voices to the hearing telephone user what the person is signing. The communication assistant listens to the voice telephone user and signs to the person who is deaf what a voice telephone user says.

Text-to-Voice TTY-based is a "traditional" TRS service. The person with a disability uses a TTY or other text input device to contact a communication assistant at the telephone relay center. TTYs allow people to type their telephone conversations. The communication assistant contacts the hearing telephone user and reads the text that the caller typed. The callee voices to the communication assistant. The communication assistant relays the call back and forth between the parties by speaking what a text user types, and typing what a voice telephone user says.

For both services, the communication assistant will explain to the voice telephone user how the system works.

TRS works in both directions. If a public entity wants to contact a person who can’t use a phone system the “regular” way, the TRS can be used. The public entity contacts the TRS, provides the individuals phone number, the TRS communication contacts the individual being called and communication occurs. Again, this could be by video relay service or TTY relay.

For most public entities the telecommunication relay service provides “effective communication” for people with disabilities communicating by telephone. 

Examples

  • A state consumer affairs agency has toll-free telephone assistance on identity theft. The agency will be in compliance with the ADA if it provides telephone assistance to people who call using the telecommunication relay service

Title II Regulations 28 § 35.161

Telecommunications

(a) Where a public entity communicates by telephone with applicants and beneficiaries, text telephones (TTYs) or equally effective telecommunications systems shall be used to communicate with individuals who are deaf or hard of hearing or have speech impairments. (b) When a public entity uses an automated-attendant system, including, but not limited to, voice mail and messaging, or an interactive voice response system, for receiving and directing incoming telephone calls, that system must provide effective real-time communication with individuals using auxiliary aids and services, including TTYs and all forms of FCC-approved telecommunications relay system, including Internet-based relay systems. (c) A public entity shall respond to telephone calls from a telecommunications relay service established under Title IV of the ADA in the same manner that it responds to other telephone calls.

Emergency Services

However, public entities that provide direct access to emergency services such as police, fire and ambulance, which often includes 911, must provide direct access for people with disabilities who use TTYs and computer modems. The relay system may not be relied on for emergency situations. Public entities may determine the appropriate technology for their emergency telephone systems.

Examples

  • A county emergency medical department provides prehospital emergency medical care to people who are sick or injured. The department cannot rely on the telecommunication relay service; it must promptly receive and respond to a direct call from people with disabilities who use TTYs or computer modems.

Title II Regulations 28 § 35.162

Telephone emergency services

Telephone emergency services, including 911 services, shall provide direct access to individuals who use TDD's and computer modems.

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