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Association of Adult Protective
    Services Conference
ADA Accessibility for Older
Americans with Disabilities
     Evelyn Dacalos Gay
     Elder Rights Project
 GA. Legal Services Program
   Senior Paralegal (non-atty)
     A. Purpose of the ADA
1. 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.
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.                            3
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.

    Brief Legislative History
1.Senate Bill S. 933, "Americans with Disabilities
    Act of 1990," was signed into law on July 26,
    1990 (Public Law 101-336).
2.Titles II (Public Services) and III (Public
      Accommodations) became effective January
      26, 1992.
3.Title I became effective July 26, 1992, for
      employers with 25 or more employees, and
      July 26, 1994, for employers with 15 or more
    Relationship to Other Laws
1. 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

  Who is Protected and Who is Not
A. Three Part Definition of Disability
  1. Having a physical or mental impairment that
     substantially limits one or more major life
  2. Having a history or record of such

  3. Being regarded as having such impairment

  Who is Protected and Who is Not

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.                                       8
Who is Protected and Who is Not

2. Major life activities include, but are
   not limited to, caring for oneself,
   performing manual tasks, walking, seeing,
   hearing, speaking, breathing, learning,

  28 C.F.R. Part 35, App. A

           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                10
    Who is Protected and Who is Not

C. Part Two of Definition: Having a History or
   Record of Impairment
  1. 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)

  1. 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)

 Who is Protected and Who is Not

Part Three of Definition: Regarded as Having an
     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)

  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)

Who is Protected and Who is Not

 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

  Who is Protected and Who is Not cont.

E. Persons Not Covered Under Definition of Disability

   1. Personal characteristics such as hair or eye
      color; cultural, social, or economic
      disadvantage; age; pregnancy; poor
      judgment or quick temper are not disabilities.

     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

     c. compulsive gambling, kleptomania, pyromania
     42 U.S.C. § 12211
         Who is Protected and Who
                is Not cont.

3. Individuals currently illegally using drugs are not
   a. Illegal drug use is use of drugs listed in Controlled
      Substance Act unless prescribed or supervised
      by licensed health professional or other authorized

   b. Individuals currently illegally using drugs, if
      otherwise qualified, cannot be excluded from health
      services or from drug rehabilitation programs.

     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
 Who is Protected and Who is Not cont…

F. Other Considerations

1. Alcohol is not a controlled substance, and
   alcoholism is a disability protected by ADA.

       a. Employers may require sobriety in the

        b. Intoxicated individuals may be excluded
           from programs and activities if their
           behavior is disruptive.
  Who is Protected and Who is Not

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

    Who is Protected and Who is Not cont...

C.Must take into account

  1) nature, severity, and duration of threat

  2) whether probability injury will occur is

  3) exclusion based on improbable "worst case
  scenarios“ generally not allowed

  4) mitigating measures to reduce or eliminate
  threat must be considered

  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

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
     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.
         Who is Protected and Who is Not

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.
  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)
          Title III of the ADA

A. 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
         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
  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
                 1) inn, hotel, or other place of lodging
                 unless five or fewer units for rent or hire
                 and occupied by proprietor as residence
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                 28
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
          Title III of the ADA Cont…

b. 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 end-of-
   season sale).
     42 U.S.C. § 1218(7); 28 C.F.R. § 36.102

     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
     2. Religious organizations or entities
     controlled by religious organizations are
            a. even if activities carried out by a
            religious organization would
            otherwise make it a public
            accommodation, the activities are
            still exempt.                            31
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.

     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
 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
5. cannot assess surcharge for barrier removal,
auxiliary aids, or modifications to policies or
6. cannot require individual to accept
accommodation or aid if individual chooses not
     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
     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

       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

       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    37
     Special ADA Issues for Older Persons

A. 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                      38
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
      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
          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,
    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
           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

        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                                      42
          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

          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

          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")

              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.

       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.          47
        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.                            48
      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.

     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.

     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?
       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?
     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

     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?                             54
      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?
 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

    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

    * 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

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

   * file a case in state or federal court