Edward Zwilling April 6, 2015
I am often asked to explain the difference between the standards applied to determine compliance with Title III of the ADA of a public accommodation, versus those applied to Title II of the ADA with regard to a public entity. In other words, why do public entities (such as cities or other governmental entities, like state universities, for example) have a different mandate under Title II, than public accommodations (such as a local restaurant or retail store) under Title III?
One way to explain the difference is that Title II (much like Section 504 of the Rehabilitiation Act) is concerned with "programs, activities and services" and is not primarily concerned with "facilities," as is Title III. The standard for public entities subject to Title II is "program access." It requires that a public entity's services, programs, or activities, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities.
In contrast, barriers must be removed from places of public accommodation under Title III where such removal is "readily achievable," without regard to whether the public accommodation's services can be made accessible through other methods. I discussed what "readily achievable" means in my previous blog entry. Suffice it to say, that alternatives to barrier removal are only triggered under Title III when there is no readily achievable method of removing a barrier from a public accommodation.
According to the Title II Technical Assistance Manual, "Public entities may achieve program accessibility by a number of methods. In many situations, providing access to facilities through structural methods, such as alteration of existing facilities and acquisition or construction of additional facilities, may be the most efficient method of providing program accessibility. The public entity may, however, pursue alternatives to structural changes in order to achieve program accessibility. Nonstructural methods include acquisition or redesign of equipment, assignment of aides to beneficiaries, and provision of services at alternate accessible sites."
In short, I think it is safe to say that barrier removal from a public entity's facility is only required when there is no other way to provide program access. An example of how program access can be provided by a public entity without removing barriers from its facilities would be a university's Office of Disability Services. A university will often have such an office in which a student with a disability registers. That office will then ensure that the classes sought by the student are provided in an accessible location, that the professor provides office hours in an accessible location, etc.
As a general rule of thumb, for a facility to be accessible enough to provide program access it should have accessible parking, an accessible entrance, and an accessible primary function area (i.e., class room, meeting room, court room, license office, etc.). Of course, if bathrooms are provided that serve the primary function area, they should be accessible as well.
Finally, a public entity does not have to take any action that it can demonstrate would result in a fundamental alteration in the nature of its program or activity or in undue financial or administrative burdens.