Enforcing the ADA A Status Report Update from the Department of Justice (January-March 1995) This Status Report Update covers the ADA activities of the Department of Justice during the first quarter (January - March) of 1995. Copies of the April 4, 1994, Status Report (which summarizes all activities up to that date) and subsequent quarterly updates are available through our ADA Telephone Information Line (see page 9). The Americans with Disabilities Act (ADA) is a comprehensive civil rights law for people with disabilities. The Department of Justice enforces the ADA's requirements in three areas - Title I: Employment practices by units of State and local government Title II: Programs, services, and activities of State and local government Title III: Public accommodations and commercial facilities I. Enforcement Through lawsuits and both formal and informal settlement agreements, the Department has achieved greater access for individuals with disabilities in nearly 350 cases. Under general rules governing lawsuits brought by the Federal Government, the Department of Justice may not file a lawsuit unless it has first unsuccessfully attempted to settle the dispute through negotiations. A. Litigation The Department may file lawsuits in Federal court to enforce the ADA and may obtain court orders including compensatory damages and back pay to remedy discrimination. Under title III the Department may also obtain civil penalties of up to $50,000 for the first violation and $100,000 for any subsequent violation. 1. Decisions Justice Wins HIV Dental Case -- The Department prevailed in its challenge to the refusal of a New Orleans dentist to provide routine dental care to two individuals because of their HIV-positive status. In granting summary judgment to the Department in _United States_ v._Morvant_, the U.S. District Court for the Eastern District of Louisiana held that (1) HIV-positive status and AIDS are protected disabilities under the ADA; (2) the *referral* of an individual with HIV or AIDS to another dentist on the basis of the patient s HIV-positive status alone is discriminatory; (3) providing routine dental care to persons with HIV or AIDS does not pose a *direct threat* to the health or safety of others; and (4) the ADA is constitutional as applied in this case. The court ordered Dr. Morvant to stop refusing to treat persons with HIV or AIDS and has scheduled a hearing on the amount of damages to be awarded to the two individuals. Court Stops Virginia Bar Mental Health Inquiry -- The U.S. District Court for the Eastern District of Virginia ordered the Virginia Board of Bar Examiners to stop asking applicants for the bar whether they had "within the past five years been treated or counseled for any mental, emotional, or nervous disorder. The Department filed several amicus briefs in _Clark_ v. _Virginia Board of Law Examiners_ challenging the Board s unnecessarily broad inquiry into past mental health treatment. We argued that broad questions pertaining to a history of treatment or counseling for mental, emotional, or nervous conditions that do not focus on current impairments of an applicant s fitness to practice a given profession violate title II. Virginia has appealed the order to the Fourth Circuit. Appeals Court Orders Attendant Care For Eligible Applicant -- The United States Court of Appeals for the Third Circuit ruled in _Helen L._ v. _Didario_ that the failure to provide home care services can in some cases violate title II. The Pennsylvania Department of Public Welfare (DPW) had refused to provide home attendant care services, under an existing program, to an individual with a mobility impairment who needs such services in order to live at home with her two children. In order to obtain the assistance that she needs, she was forced to enter a DPW-maintained nursing home even though she does not need nursing care. The State asserted that the attendant care program is underfunded and that the plaintiff must continue on the waiting list. Pennsylvania agreed, however, that the most appropriate setting for the plaintiff is in the attendant care program. The State also agreed that attendant care for the plaintiff in her home would cost Pennsylvania $9,300 less per year than nursing home care. The Department argued in an amicus brief that the title II regulation, which requires public entities to provide services in the most integrated setting appropriate to the needs of the individual with a disability, mandates, in this particular situation, that the plaintiff be permitted to enter the existing attendant care program. The Third Circuit agreed that Pennsylvania had violated title II and ordered the State to admit the plaintiff to the home care program. Justice Unveils Disability Rights Section -- On March 1, 1995, a new Disability Rights Section was created in the Department s Civil Rights Division to carry out ADA enforcement, technical assistance, regulatory, and certification activities. The Disability Rights Section consists of the former Public Access Section plus additional personnel from the Coordination and Review, and Employment Litigation Sections. The reorganization will promote efficient implementation of the ADA, and changing the name from Public Access to Disability Rights has great symbolic significance as well. "The time is long overdue for the public to recognize that disability rights are civil rights," said Assistant Attorney General, Deval L. Patrick. Title I and II activities formerly carried out by Employment Litigation and Coordination and Review, including title I litigation and title II investigations, are now handled by the Disability Rights Section. In addition, the Disability Rights Section is responsible for meeting the Department s obligations to coordinate Federal implementation of title II of the ADA and section 504 of the Rehabilitation Act of 1973. 2. New lawsuits The Department initiated or intervened in the following lawsuits. Title III _Abbott_ v. _Bragdon_ -- The plaintiff, who is HIV- positive, claims that dentist has refused to provide her with routine office dental care because of her HIV status. The Department has moved to intervene to defend title III against claims by the dentist that the ADA is unconstitutional. The Department also seeks to participate as amicus on other issues in the case. 3. Consent decrees Some litigation is resolved at the time the suit is filed or afterwards by means of a negotiated consent decree. Consent decrees are monitored and enforced by the Federal court in which they are entered. Title I _United States_ v. _City of Slidell, Louisiana_ -- The Department resolved by consent decree a reasonable accommodation suit against Slidell, Louisiana, brought on behalf of Gregory Smith, an employee in the city s department of parks and recreation. The lawsuit alleged that the city failed to reasonably accommodate Mr. Smith s chronic knee condition, which had resulted from an on-the-job injury, and that the city discharged him because of his disability without discussing with him whether he could continue to do the job. Under the consent decree, Mr. Smith received $2,000 in compensatory damages and over $21,000 in back pay. He did not seek reinstatement to his job. The case originated as a charge filed with the Equal Employment Opportunity Commission that was referred to the Department of Justice for litigation when conciliation efforts failed. Title III _United States_ v. _VSP Partnership_ -- The Department filed, and resolved by consent decree, a lawsuit involving accessibility problems against Villas by the Sea, a hotel and resort in Lauderdale-by-the-Sea, Florida. Under the terms of the consent agreement, Villas by the Sea will correct inaccessible alterations made to the facility after January 26, 1992 (the effective date of title III s alterations requirements), make necessary path of travel modifications, provide three accessible guestrooms, and undertake other barrier removal throughout several facilities to ensure accessibility. _United States_ v. _Gibson s Discount Centers, Inc._-- A lawsuit and consent decree were filed simultaneously to resolve this case against the operator of 31 discount department stores in eight Midwest and Rocky Mountain States. The Department investigated complaints against several Gibson s stores alleging that Gibson s had failed to remove architectural barriers to access and that it had made alterations without complying with the ADA s Standards for Accessible Design. Under the terms of the consent order, Gibson s will bring every one of its stores into full compliance with the Standards. Gibson s will provide at least one accessible fitting room and entrance at each store, as well as accessible parking, check-out aisles, and restrooms. In addition, Gibson s will pay a civil penalty of $30,000 to the United States, and will pay compensatory damages of $15,000 to the complainant. _United States_ v. _1400 Glenarm Place Co-Tenancy_ -- The Department filed a lawsuit and consent decree to resolve this case involving a commercial office building in downtown Denver that made inaccessible alterations to its facility after January 26, 1992. Under the consent agreement, the defendants agreed to correct the inaccessible alterations and also agreed to make substantial path of travel modifications, including changes to restrooms on three floors and provision of an accessible entrance to space leased to a public utility company. 4. Amicus Briefs The Department files briefs in selected ADA cases in which it is not a party in order to guide courts in interpreting the ADA. Title II _United States and Taylor Home of Charlotte, Inc._ v. _City of Charlotte, North Carolina_ -- The Department filed a brief arguing that a nonprofit corporation that provides housing for AIDS patients has standing to challenge zoning practices under title II of the ADA and section 504 of the Rehabilitation Act of 1973. The brief also opposes defendant s argument that title II does not cover zoning. This suit was brought by the Department of Justice under the Fair Housing Act to challenge Charlotte s revocation of a building permit for a group home for AIDS patients. The group home intervened and raised related claims under the ADA and the Rehabilitation Act that the defendant has asked the court to dismiss. _Wyatt_ v. _Hanan_ -- The Department filed an amicus brief in support of a challenge to the State of Alabama s program for providing residential care, treatment, and training for persons with mental disabilities. Alabama State professionals admit that many individuals with mental disabilities currently institutionalized in public facilities are improperly placed there and should instead be served in appropriate existing community-based programs throughout the State. The State also admits that community-based services are generally less costly than institutional services. The Department asserts that this unnecessary segregation is a form of discrimination prohibited by the ADA. In a ruling allowing the case to go to trial, the court noted that integration is required where it is reasonable for the public entity and appropriate for the individual with a disability. Whether the ADA requires any particular individual to be offered a community-based placement would depend on the facts of the particular case. Title III _Kovacs_ v. _Kawakami_ -- The Department filed an amicus brief in support of a deaf woman who was refused treatment by a pulmonary specialist because of the doctor s belief that he could not communicate with her. The doctor also said that he would not provide any services in the future unless she brought along a family member *who could talk.* Trial is scheduled for July. B. Formal Settlement Agreements The Department sometimes resolves cases without filing a lawsuit by means of formal written settlement agreements. Title II Marshall County, Mississippi -- A settlement agreement resolved two complaints involving the discharge of volunteer firefighters for HIV-related reasons. One complainant alleged that he had been removed from membership in a county-funded volunteer fire department after the fire department learned he was HIV-positive. The other complainant alleged that he had been removed from membership with county-funded fire departments as a result of his known association with the first complainant. The County agreed to reinstate the complainants immediately to regular membership as volunteer firefighters, with all appropriate equipment and training, and pay each $1,000 in damages. In addition, the County agreed to ensure that the volunteer fire departments will not retaliate or harass these individuals for asserting rights protected by the ADA, to conduct training for all volunteer firefighters on universal precautions to prevent the transmission of HIV during firefighting activities, to issue a nondiscrimination policy, and to adopt grievance procedures for reviewing claims of discrimination. Fort Lauderdale, Florida -- The Department of Justice and the Fort Lauderdale Police Department reached a settlement agreement to ensure direct access to 9-1-1 services for persons who are deaf and hard of hearing. A woman who is deaf had twice tried to summon police using a telecommunications device for the deaf (TDD) but failed to receive a response from the police either time. The city agreed to modify its current practices to ensure that the services provided to individuals who use TDD s are as effective as those provided to others. It agreed to install a TDD at each of four response center consoles and to implement a public education program to promote the use of 9-1-1 by individuals who use TDD s. St. Louis, Missouri -- The St. Louis Land Clearance Redevelopment Authority (LCRA) signed a settlement agreement to resolve a complaint alleging that the ticket pricing, companion seating, and parking policies and procedures of the St. Louis Arena discriminated against individuals with disabilities. Because the Arena recently closed, the agreement does not require changes at the Arena. However, it does require the LCRA to maintain nondiscriminatory policies. Moreover, it provides for the LCRA to pay over $16,000 in compensatory damages to three complainants. Alexandria, Louisiana -- The Alexandria Police Department agreed to adopt and publicize a policy for the provision of appropriate auxiliary aids, including sign language interpreters, to persons with hearing impairments when necessary to ensure effective communication in arrest and other situations. Mercer County, West Virginia -- The County agreed to develop a compliance plan to make the services, programs, and activities conducted in the Mercer County Courthouse accessible to individuals with mobility impairments. Title III Dollar, Inc., Washington, D.C. -- Dollar, Inc., one of the largest car rental establishments in the country, agreed to modify its rental policies to permit people with disabilities to rent cars when accompanied by licensed drivers. Prior to the agreement, Dollar required the licensed driver to be the financially responsible party. This policy made it impossible for people with disabilities who cannot drive (for example, people with visual impairments) to rent cars, even when they had a licensed driver accompanying them. Under the agreement, an individual with a disability who is the financially responsible party may rent a car using his or her own credit card, while a driver accompanying the individual presents his or her own driver s license. All Dollar licensees renewing existing contracts or entering into new contracts subsequent to the agreement will be required to adopt the new policy. Lone Star Steakhouse and Saloons, Wichita, Kansas -- Lone Star Steakhouse and Saloons, a nationwide restaurant chain operating 105 restaurants in 29 States, agreed to bring 97 new or altered facilities into full compliance with the ADA within 45 days, and comply with the ADA in the alteration and new construction of its restaurants in the future. This settlement was the first resulting from a compliance review, a process by which the Department, in the absence of a complaint, reviews architectural plans for new construction and alterations to assess compliance. Initial review of architectural plans revealed violations of the ADA, and site visits confirmed Lone Star s failure to provide accessible routes from parking areas, and other accessible features including seating, restrooms, and parking. Under the terms of the settlement, Lone Star is contributing $25,000 to four disability advocacy groups, in amounts of $6,250 each. Drs. David, Schulman, and Weinstein, East Hartford, Connecticut -- The Department settled a complaint against a dental practice in East Hartford, Connecticut, alleging that the dentists refused to treat an individual because he had AIDS. Under the agreement, the dentists paid $20,000 in compensatory damages to the estate of the complainant, and $9,000 in civil penalties. They also agreed to implement and publicize a policy of nondiscrimination on the basis of HIV and AIDS. C. Other settlements The Department resolves numerous cases without litigation or a formal settlement agreement. In some instances, the public accommodation, commercial facility, or State or local government promptly agrees to take the necessary actions to achieve compliance. In others, extensive negotiations are required. Following are some examples of what has been accomplished through informal settlements. Title II Access to facilities A Pennsylvania county is removing physical barriers in its county courthouse and other county buildings and has agreed to relocate a courtroom and a public restroom in order to provide interim access until construction is completed. A midwestern State department of corrections agreed to transfer its reception and classification centers for inmates who use wheelchairs from three inaccessible correctional centers to two accessible prisons, and provide accessible vans to transport inmates who use wheelchairs. A Pennsylvania township is rebuilding the entrance to the township municipal building and constructing an accessible restroom. In the interim, the township constructed a wooden ramp to provide access to the building. Policies and procedures A southern State board of bar examiners agreed to provide an additional day of testing for an applicant with impaired vision to complete the bar exam. Effective communication A Florida county agreed to make improvements in its 9-1-1 operational policies and procedures, equipment, and training in order to ensure the effective handling of TDD calls. Title III Access to facilities The outlet of a national chain discount department store in a small Pennsylvania town constructed a new bathroom, including an entrance door with a minimum 32" opening, accessible stalls, toilets, accompanying grab bars, and insulated water pipes under all sink fixtures. It also converted an existing fitting room to an accessible fitting room with grab bars, a bench, and a mirror. A Baltimore shopping center installed accessible parking spaces and curb cuts to provide accessibility from the parking lot to the center s shops. A New Mexico shopping mall created 38 accessible parking spaces, including 13 van accessible spaces; removed hazards for persons with visual impairments; remodeled the men s and women s restrooms to include accessible fixtures, including grab bars, flashing alarm lights, and permanent signage with Braille and raised characters; installed signs indicating accessible parking; and provided new public telephones, including one TDD. A Rhode Island restaurant agreed to make its entrance and restrooms accessible as part of a major renovation. A historic hotel in Colorado agreed to make its secondary entrance accessible by regrading the adjacent sidewalk (historical preservation authorities argued that making the hotel s main entrance accessible would destroy the hotel s historic significance), arranging for bell assistance at the secondary entrance when necessary, and installing an accessible unisex restroom in the hotel lobby. A Florida deli installed accessible parking spaces, corrected a curb ramp, and lowered internal service counters to an accessible height. A Gulf Coast mall agreed to install accessible restrooms, reconfigure the accessible parking to be on the shortest accessible route to accessible entrances, and install a ramp at the mall s only covered entrance. An Atlanta family restaurant agreed to install a ramp in the internal hallway to the dining area. A Connecticut YMCA agreed to install a key-operated flashing strobe light and a communication system as a means of alerting staff to the presence of a person at a locked entrance; guarantee access to persons with mobility impairments at all times during the YMCA s operating hours; move a weight room that was located on the lower floor to an accessible floor; install a permanent shower bench in the boy s locker room; provide a hydraulic pool lift to facilitate the use of the swimming pool by disabled persons; restripe the accessible parking spaces in the parking lot in accordance with the ADA Standards for Accessible Design; and provide an accessible, unisex restroom. A Columbus, Ohio, hotel agreed to add a wheelchair lift to the second story; convert additional guest rooms to be accessible to persons with disabilities (including rooms with roll-in showers); designate accessible parking spaces, including spaces that are van-accessible; remove barriers to the front entrance; provide visual alarms; replace existing signs with signs with high contrast characters accompanied by Braille lettering; and renovate the existing women s and men s public toilet rooms on the main level to be more accessible. Effective Communication A Maryland doctor agreed to provide a sign language interpreter for a patient and her husband, both of whom are deaf, during office visits. II. Certification of State and Local Building Codes The ADA authorizes the Department of Justice to certify State or local laws or building codes that meet or exceed the ADA s accessibility requirements. This is a voluntary program in which States and localities can choose to participate. In a jurisdiction whose law or code has been certified, when a new public accommodation or other commercial facility is built or an existing facility is altered or expanded, compliance with the local regulations will give the building owner and other responsible parties rebuttable evidence of compliance with the ADA, if the building s accessibility is later challenged under the ADA. Certification thus allows local building officials to play a role in ensuring that buildings are constructed to be accessible. It also allows accessibility to be assessed early in the construction process as part of the State or local building permit and inspection processes. Finally, by promoting the incorporation of ADA-equivalent accessibility requirements into local codes, certification makes those requirements more familiar and readily available to local architects and builders, and eliminates possible conflicts with Federal law. Justice Certifies Washington Code On March 29, 1995, the Department certified that the Washington State Regulations for Barrier Free Design meet or exceed the new construction and alterations requirements of the Americans with Disabilities Act. This is the Department s first certification of the equivalency of a State code. The Washington State request for certification was the first received by the Department. The Department provided extensive technical assistance to the Washington Building Code Council to assist in the development of a fully equivalent code. The Department first issued a preliminary determination of equivalency and then requested input from the public through written comments and two public hearings. Those comments supported the Department s determination. III. Technical Assistance The ADA requires the Department of Justice to provide technical assistance to entities and individuals with rights and responsibilities under the ADA. The Department encourages voluntary compliance by providing education and technical assistance to business, industry, government, and members of the general public through a variety of means. Our activities include providing direct technical assistance and guidance to the public through our ADA Information Line and other activities, developing and reviewing technical assistance materials, disseminating technical assistance materials to the public and undertaking outreach initiatives, operating an ADA technical assistance grant program, and coordinating ADA technical assistance government-wide. ADA Information Line The Department of Justice now provides toll-free 800 service for both voice and TDD callers who have questions about complying with title II and title III of the ADA, including the Standards for Accessible Design. Under its expanded hours of operations, operators may be reached from 10:00 a.m. to 6:00 p.m. (EDT), Monday through Friday (Thursdays, 1:00 p.m. to 6:00 p.m.). The system has been upgraded to accommodate a larger number of callers simultaneously and to provide Spanish language service. Callers may hear recorded information and order materials at any time day or night. ADA Information Line numbers are: Nationwide 1-800-514-0301 (voice) 1-833-610-1264 (TDD) Publications Copies of the Department of Justice's regulations for titles II and III of the ADA, the ADA Questions and Answers booklet, the ADA Handbook (limited quantities available), and information about the Department s technical assistance grant program can be obtained by calling the Department s toll-free ADA Information Line at the number listed above or writing to the address listed below. These materials are available in standard print, large print, Braille, audiotape, and computer disk. U.S. Department of Justice Civil Rights Division Disability Rights Section Post Office Box 66738 Washington, D.C. 20035-6738 ADA Documents are On-line -- The Department of Justice operates an electronic bulletin board system (BBS) that contains its ADA regulations and technical assistance materials as well as some materials from other Federal agencies. These can be downloaded by computer modem by dialing 202-514-6193. The BBS can also be accessed through the Internet. The access codes are telnet fedworld.gov Gateway D, choice 1 #9. The Department also has placed a variety of its ADA materials directly on the Internet, including press releases on ADA cases and ADA regulations and technical assistance materials. These materials can be accessed with gopher client software (gopher.usdoj.gov), through other gopher servers (choose 9 for North America, 5 for USA, 1 for All, and look for DOJ, which currently is option 377), with World Wide Web software (http://www.usdoj.gov), or through the White House WWW server (http://www.whitehouse.gov). The Department s press releases are located under the Office of Public Affairs. Other ADA materials are located under Litigating Organizations, Civil Rights Division. Copies of the Department of Justice s Technical Assistance Manuals for titles II and III and yearly updates can be obtained by subscription from the Government Printing Office. The subscription fee for the Title II Manual, which includes annual supplements through 1996, is $24. The subscription fee for the Title III Manual with supplements through 1996 is $25. Call the ADA Information Line to obtain an order form. Copies of legal documents and settlement agreements mentioned in this publication can be obtained by writing to: Freedom of Information/Privacy ct Branch Administrative Management Section Civil Rights Division U.S. Department of Justice P.O. Box 65310 Washington, D.C. 20035-5310 Town Meetings to Examine ADA Technical Assistance -- As part of President Clinton s National Performance Review, the Department of Justice and the Equal Employment Opportunity Commission will conduct open *Grassroots Partnership Meetings* on the ADA in three communities in early May. These meetings will focus on how ADA technical assistance efforts can be improved to maximize voluntary compliance with the law. The meetings are sponsored by a coalition of local business, government, and disability organizations and will be held in Houston, Texas; Pittsburgh, Pennsylvania; and Sioux Falls, South Dakota. IV. Other Sources of ADA Information The Equal Employment Opportunity Commission offers technical assistance to the public concerning title I of the ADA. For ordering documents 1-800-669-3362 (voice) 1-800-800-3302 (TDD) For questions 1-800-669-4000 (voice) 1-800-669-6820 (TDD) The U.S. Department of Transportation offers technical assistance to the public concerning the public transportation provisions of title II and title III of the ADA. ADA documents and general questions 202-366-1656 (voice) 202-366-4567 (TDD) ADA legal questions 202-366-1936 (voice) 202-366-0748 (TDD) Complaints and enforcement 202-366-2285 (voice) 202-366-0153 (TDD) Project ACTION 202-347-3066 (voice) 202-347-7385 (TDD) The Federal Communications Commission offers technical assistance to the public concerning title IV of the ADA. ADA documents and general questions 202-418-0190 (voice) 202-418-2555 (TDD) ADA legal questions 202-634-1798 (voice) 202-418-0484 (TDD) Complaints and enforcement 202-632-7553 (voice) 202-418-0485 (TDD) The U.S. Architectural and Transportation Barriers Compliance Board, or Access Board, offers technical assistance to the public on the ADA Accessibility Guidelines. ADA documents and questions 1-800-872-2253 (voice) 1-800-993-2822 (TDD) 202-272-5434 (voice) 202-272-5449 (TDD) The National Institute on Disability and Rehabilitation Research (NIDRR) of the U.S. Department of Education has funded centers in ten regions of the country to provide technical assistance to the public concerning title I, title II, and title III of the ADA. ADA technical assistance nationwide 1-800-949-4232 (voice & TDD) The Job Accommodation Network (JAN) is a free telephone consulting service funded by the President's Committee on Employment of People with Disabilities. It provides information and advice to employers and people with disabilities on reasonable accommodation in the workplace. Accommodation in the workplace 1-800-526-7234 (voice & TDD) V. How to File Complaints Title I Complaints about violations of title I (employment) by units of State and local government or by private employers should be filed with the Equal Employment Opportunity Commission. Call 1-800-669-4000 (voice) or 1-800-669-6820 (TDD) for the field office in your area. Titles II and III Complaints about violations of title II by units of State and local government or violations of title III by public accommodations and commercial facilities should be filed with - U.S. Department of Justice Civil Rights Division Disability Rights Section Post Office Box 66738 Washington, D.C. 20035-6738