Date Issued: November 3, 2014
RECIPIENT
- All Providers of Treatment and Prevention Services
- Local Designated Agencies (LDAs)
- Local Governmental Units (LGUs)
PURPOSE
The purpose of this Bulletin is to express the requirements of the Americans with Disabilities Act (ADA) as it applies to programmatic access, by the disabled, to alcoholism and substance abuse services. Prior related DSAS Bulletins 82-01 ("Services Available to the Hearing Impaired"), DSAS 89-28 ("Telecommunications Devices for the Speech and/or Hearing Impaired"), and DSAS 91-05 ("Americans with Disabilities Act of 1990") are still in effect. These prior bulletins are available upon request from the OASAS Management Services Unit in Albany, Telephone (518) 485-6689 or via E-mail.
TITLE III OF THE ADA
The ADA is a federal statute which became law in 1990 and it provides wide ranging protection against discrimination to many millions of Americans in both public and private sectors who have one or more physical and/or psychiatric disabilities. The purpose of the ADA is to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.
While perhaps best known for the protection it affords from discrimination in employment, the ADA also provides strong protection for the disabled in the area of public accommodation. Title III of the ADA prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodation of any place of public accommodation by any person who owns, leases, or operates a place of public accommodation. Goods, services, and accommodations must be offered in the most appropriate and integrated setting.
Alcoholism and substance abuse programs are covered under Title III and accordingly such programs must provide equal access, both physical and programmatic, to services for persons with disabilities. Physical barriers may prove problematic for the disabled and may require appropriate modification and/or removal. However, programmatic access to alcoholism and/or substance abuse services can pose even more significant problems to the disabled. As an example, the deaf and/or hard of hearing may require the services of an interpreter in order to meaningfully access services. Accordingly, this Local Services Bulletin will focus on programmatic access to alcoholism and/or substance abuse services.
Providers of alcoholism and substance abuse services in New York State (regardless of whether or not a program receives public funds) have a legal obligation to provide accessible alcohol and other drug ("AOD") services to the disabled in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity. An individual may not be denied AOD services on the basis of a disability (or disabilities) unless the individual poses a direct threat to the health or safety of others that cannot be reasonably eliminated or reduced.
EFFECTIVE COMMUNICATIONS
In order to provide equal access, providers are required to make available appropriate auxiliary aids and services where necessary to ensure effective communication with patients. The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the length and complexity of the communication involved.
Examples of Auxiliary Aids and Services
Auxiliary aids and services include a wide range of services and devices that promote effective communication.
Examples of auxiliary aids and services for individuals who are deaf or hard of hearing include qualified interpreters, note takers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDD's), videotext displays, and exchange of written notes.
Examples for individuals with vision impairments include qualified readers, taped texts, audio recordings, Brailed materials, large print materials, and assistance in locating items.
Examples for individuals with speech impairments include TDD's, computer terminals, speech synthesizers, and communication boards.
Examples for individuals with cognitive disabilities (i.e., learning disabilities, mental retardation, etc.) include using appropriate reading level materials, minimizing the use of written material, matching vocabulary to the individual's capacity to understand, or using non-abstract, concrete language.
Who decides what type of auxiliary aid should be provided?
Providers should consult with individuals with disabilities wherever possible to determine what type of auxiliary aid is needed to ensure effective communication. In many cases, more than one type of auxiliary aid or service may make effective communication possible. While consultation is strongly encouraged, the ultimate decision as to what measures to take to ensure effective communication rests in the hands of the provider, as long as the method chosen results in effective communication.
Who is a qualified interpreter?
There are a number of sign language systems in use by persons who use sign language. The most common systems of sign language are American Sign Language and signed English. Individuals who use a particular system may not communicate effectively through an interpreter who uses another system. When an interpreter is required, the provider should furnish a qualified interpreter, that is, an interpreter who is able to sign to the individual who is deaf what is being said by the hearing person and who can voice to the hearing person what is being signed by the individual who is deaf. This communication must be conveyed effectively, accurately, and impartially, through the use of any necessary specialized vocabulary.
If a sign language interpreter is required for effective communication, must only a certified interpreter be provided?
No. The key question in determining whether effective communication will result is whether the interpreter is "qualified," not whether he or she has been actually certified by an official licensing body. A qualified interpreter is one "who is able to interpret effectively, accurately and impartially, both receptively and expressively, using any necessary specialized vocabulary." An individual does not have to be certified in order to meet this standard. A certified interpreter may not meet this standard in all situations, e.g., where the interpreter is not familiar with the specialized vocabulary involved in the communication at issue.
LIMITATIONS AND ALTERNATIVES
A provider is not required to provide any auxiliary aid or service that would fundamentally alter the nature of the goods or services offered or that would result in an undue burden. However, the fact that providing a particular auxiliary aid or service would result in a fundamental alteration or undue burden does not necessarily relieve a provider from its obligation to ensure effective communication. The provider must still provide an alternative auxiliary aid or service that would not result in an undue burden or fundamental alteration but that would ensure effective communication to the maximum extent possible, if one is available.
What is a fundamental alteration?
A fundamental alteration is a modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered.
What is an undue burden?
An undue burden is a significant difficulty or expense. Among the factors to be considered in determining whether an action would result in an undue burden are the following:
- The nature and cost of the action;
- The overall financial resources of the site or sites involved; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures; or any other impact of the action on the operation of the site;
- The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
- If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
- If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.
In all cases of demonstrated fundamental alteration or undue burden, it is the provider's responsibility to clearly document the basis for that decision, and to make a referral to an appropriate entity.
ENFORCEMENT AND SANCTIONS
The ADA establishes two avenues for the enforcement of the requirements of Title III: (1) private lawsuits brought by individuals who are being subjected to discrimination or who have reasonable grounds for believing that they are about to be subjected to discrimination, and (2) lawsuits brought by the United States Department of Justice (USDOJ) whenever it has reasonable cause to believe that there is a pattern or practice of discrimination, or discrimination that raises an issue of general public importance. The USDOJ will investigate complaints and conduct compliance reviews of providers.
In a suit brought by the USDOJ, in addition to ordering the provider to allow the disabled to have access, the court may award appropriate relief, including monetary damages to individual victims of discrimination. These monetary damages include all forms of compensatory damages, including out-of-pocket expenses and damages for pain and suffering. Also, to vindicate the public interest, the court may assess a civil penalty against the provider in an amount not exceeding $50,000 for a first violation and not exceeding $100,000 for any subsequent violation. Attorney's fees, including litigation expenses, such as expert witness fees, travel expenses, and costs, may also be recoverable.
TECHNICAL ASSISTANCE
The USDOJ ADA Technical Assistance Program provides free information and technical assistance directly to businesses, non-profit service providers, state and local governments, people with disabilities, and the general public. The USDOJ has a toll-free ADA Information Line which provides information and free publications about the requirements of the ADA; the number is 800-514-0301 (voice) and 800-514-0383 (TDD). The USDOJ also maintains an ADA-related website at https://www.ada.gov/.
The US Department of Health and Human Services/Substance Abuse and Mental Health Services Administration has published a Treatment Improvement Protocol (TIP No. 29, DHHS Publication No. SMA-98-3249) entitled "Substance Abuse Disorder Treatment for People with Physical and Cognitive Disabilities."
Due to complexity of the issues involved, you should, if you have not yet already done so, consult with your own attorney to ascertain whether your facility and/or its programs is/are in full compliance with the ADA.