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ADA Guidelines from the U.S. Department of Justice on Sheltering for Mass Care

Prepared Remarks of Olegario D. Cantos VII, Esq.
Special Counsel to the Acting Assistant Attorney General
Civil Rights Division
U.S. Department of Justice

Disability and Special Needs Technical Assistance Conference: Emergency Preparedness, Response and Recovery

National Organization on Disability
Tuesday, January 8, 2008
Capital Hilton, Washington, DC

Good morning, everyone. I wish to begin by extending to you warmest greetings on behalf of Acting Assistant Attorney General Grace Chung Becker. At the Department of Justice, we in the Civil Rights Division believe very strongly in the need for collaboration in order to prevent reinvention of the proverbial wheel to save on precious time and minimize waste of tax dollars. A good government is a responsive one, and emergency preparedness is an issue that affects us all.

In late July 2004, President George W. Bush signed Executive Order 13347, addressing emergency preparedness concerning people with disabilities. Consequently, agencies across the federal government have combined their efforts to share information, exchange ideas, and determine ways in which to work closely with local and state officials within the emergency preparedness field as well as anyone else (including leaders and members of communities of every size) playing an active role to prepare for the event of a natural or human-caused disaster.

Philosophically, the President believes that all Americans – both those with and without disabilities – must be considered in emergency planning, and must also be a part of community-based solutions that take the needs of various constituencies into careful and meaningful consideration. Within the disability context, it is important to gain a basic understanding of the laws that govern how emergency planning professionals and all other segments of the community should include people with disabilities in the planning process and respond to their needs to the same degree of effectiveness as for those without disabilities. Ultimately, everyone must remember that the worst time to address these issues is when an emergency has already happened. We should all prepare in advance.

THE SCOPE OF THE LAW

Going into some detail regarding what federal laws apply to protect the rights of people with disabilities in emergency preparedness situations, Title II of the Americans with Disabilities Act (ADA) requires nondiscrimination in State and local government programs, services, and activities. Everything a state or local government does is covered. The Department of Justice has extensive title II regulations that cover all programs, services, or activities of public entities. These public entities cannot exclude individuals on the basis of disability and must make programs in existing facilities accessible, including shelters. Public entities must make new facilities accessible in accordance with a higher architectural design standard.

Title III applies to places of public accommodation. Most common examples include bars, restaurants, gas stations, movie theaters, and hotels. Other examples include private entities who are service providers, such as doctor's offices and nonprofit relief organizations. If a city contracts with the Red Cross or another private service provider, the city remains subject to title II, and the other private entity would have independent Title III obligations.

On another front, recipients of federal financial assistance are subject to Section 504 of the Rehabilitation Act of 1973. Section 504 is enforced by each federal agency that provides Federal financial assistance and covers entities that receive such assistance to provide programs for emergency services. These include fire departments, police departments, and private nonprofit organizations. The scope of the requirements here are the same as Title II of the ADA.

It is worth noting that Section 504 of the Rehabilitation Act also applies to the activities of the Federal Government itself. Section 504 applies to the federally conducted activities of Federal Executive agencies, such as, for example, the Department of Homeland Security, the National Park Service, and the Social Security Administration. Under the Rehabilitation Act, federal agencies have an obligation to provide reasonable accommodations to employees with disabilities, including an obligation to accommodate employees with disabilities in evacuation procedures, sheltering, etc.

Employment outside the Federal sector is covered by title I of the ADA. Title I covers private employers and State and local governments with 15 or more employees. It also requires reasonable accommodation, including an obligation to accommodate employees with disabilities in evacuations, sheltering, and other facets of emergency planning and implementation of related plans. Section 504 imposes similar requirements on employers that receive Federal funds.

PROJECT CIVIC ACCESS

I would like to tell you about Project Civic Access, a nationwide effort by the Department of Justice to ensure that towns themselves are accessible to people with disabilities. The main focus has been on town halls and city facilities, such as parks, sidewalks, and websites. We have entered into over 150 settlement agreements with local governments across the country.

Since 9/11, our focus has broadened also to include accessibility in emergency preparedness and planning for people with disabilities. A number of agreements now include emergency preparedness provisions. All Project Civic Access agreements may be found on our website at www.ada.gov. There are a number of important issues to consider, and these have also been addressed in our PCA agreements.

KEY TIPS TO ENHANCING ACCESSIBILITY

If you keep the following key points in mind, you will take substantial steps forward on meeting the needs of people with disabilities within emergency preparedness situations.

1. In the area of contracting, if a city contracts with another entity, public or private (like the Red Cross, for example), the city still has an obligation to ensure that programs are accessible. As mentioned earlier, these other entities may have independent obligations under the ADA or Section 504 of the Rehabilitation Act.

2. With regard to planning, people with disabilities and organizations that represent them should be involved in the planning process for emergency preparedness, and their views should be solicited on a regular basis.

3. In terms of notification, public entities must ensure that emergency management policies and procedures address the needs of people with disabilities. For instance, where a city warns citizens of an emergency by sirens or other audible alerts such as police cruiser bullhorns, it is likely that people who are deaf or hard of hearing will be excluded to a significant degree. To address this issue, some cities are developing systems using phone calls, auto-dialed TTY messages, and e-mails to pre-registered individuals. Other methods include providing real-time open captioning on television programming or dispatching sign language interpreters to television studios to assist in broadcasting important emergency-related news information.

4. With evacuations, public entities must establish evacuation procedures to accommodate people with disabilities, including those who use wheelchairs or other mobility devices, those who are blind or who have low vision, and those who have cognitive disabilities, and enable them to safely evacuate under trying conditions. Some communities are establishing voluntary, confidential registries of individuals who may need assistance. It is critical to establish procedures that ensure voluntariness and confidentiality, that provide a process for continually updating the registry, and that promote the widest possible awareness and participation.

5. Regarding emergency shelters, they historically have been supplied with the basic necessities of food, water, and blankets. Now they must adopt a more sophisticated and comprehensive approach to ensure accessibility to people with disabilities.

6. Turning to the accessibility of buildings, these facilities must provide an accessible route to an accessible entrance and accessible restrooms. If they have phones, TTY's should be provided. If not all shelters are physically accessible, let the community know which ones are. It is important to survey existing shelters and make them more accessible, both within a physical and programmatic sense.

7. There is the important policy question concerning service animals. A shelter cannot turn away someone who comes with a service animal because of a "no pets" rule. Adjustments may need to be made within the shelter for those who for health or safety reasons cannot be near them.

8. The particular medical needs of people with disabilities must be addressed. Emergency officials must consider the needs of individuals who use electricity to power life-sustaining devices or who use medication that require refrigeration. There should be at least one shelter with a backup generator. Even though a city may have a "special needs" shelter with a wide range of specialized services, most people with disabilities do not require these services and should not be turned away from their neighborhood shelter or segregated in particular shelters or parts of shelters.

9. With respect to post-evacuation or temporary housing, if a city provides temporary housing for victims of disasters, it should include accessible units within the range of choices offered (e.g., hotels with accessible rooms.)

NEW TECHNICAL ASSISTANCE DOCUMENT

These tips that I have just given you should serve merely as the starting point. To help you with learning more, I am pleased to inform you that the Civil Rights Division recently released Chapter 7 of the ADA Best Practices Tool Kit for State and Local Government, an important resource for communities that are in the process of planning for accessibility. It is available on our website at www.ada.gov. Dov Lutzker, a long-time disability rights attorney in our Division who was just named Special Counsel in the Disability Rights Section, will provide you with further background about this material, following my remarks.

NEXT STEPS AND REACHING OUT TO THE DISABILITY COMMUNITY

For those new to working with people with disabilities, there may be questions regarding how to identify key leaders in your area who can provide qualified and invaluable perspective and expertise. In determining how to move ahead, it is critical to understand that people with disabilities come in all shapes, sizes, and colors. Representing one in six Americans, they are of any age and come from every socio-economic classification. In short, disability can touch all of us. As is the common saying in the disability world, ours is the only minority one can join.

Sometimes, people possess disabilities such as mine (being blind and using a long white cane). But, in many other cases, the disabilities themselves may not be visible at all such as for those who have psychiatric disabilities, learning disabilities, or invisible medical conditions such as epilepsy. For those with invisible disabilities, all too often, people tend either to say or think, "Gosh, you don't LOOK disabled." Just please keep in mind that there is often more to life than meets the eye. Leaders in the disability community stand ready to provide information that will prove extremely valuable to you as you move forward to address the diverse needs of different populations, and remember that there is no such thing as a "one size fits all" approach. To get you started, here are some networking resources that you may begin to use right away:

There are more than 500 organizations called "independent living centers" that assist people with disabilities in maximizing their potential. An extensive directory of these organizations may be found on the website of the Independent Living Resources Utilization Project at www.ilru.org. From the home page, simply click on "CIL Directory" and select your state, and you will instantly be linked to the names, executive directors, addresses, phone numbers, fax numbers, and email addresses of key contacts.

To network with those serving people with developmental disabilities such as cerebral palsy and cognitive disabilities, you may learn about your state's developmental disabilities council by going to the website of the National Association of Councils on Developmental Disability at www.nacdd.org.

To tap into the network of federally-funded legal advocacy organizations including those serving individuals with physical, psychiatric, and learning disabilities, the National Disability Rights Network has an online directory which you may use to identify those in the legal profession, whose life's work surrounds advocating for the rights of people with disabilities under the law. To learn more and to view the complete directory by state, visit www.ndrn.org.

The National Organization on Disability has been working to assemble information surrounding various facets of emergency preparedness for people with disabilities. For full details, visit www.nod.org.

Another organization doing some groundbreaking work on assembling information that you may readily view is the American Association on Health and Disability (AAHD). The organization has put together and is continually updating an annotated bibliography, which has very useful information. Visit www.aahd.us.

If you wish to network with any or all of the more than 650,000 nonprofit organizations in this country, there is a one-stop source of information that can help you do just that. Visit www.guidestar.org. While there, if you yourself are with a nonprofit organization, utilize the opportunity to view your own organization's full listing, which includes mission statement, three most recent accomplishments, contact information, website URL, names of current board members, and even a page to allow folks to donate money to the organization online via a major credit card. Check it out.

If you are affiliated with a nonprofit organization and would like to identify foundation resources that may assist you with your ongoing work, visit www.FoundationCenter.org. The Foundation Center has put together a list of more than 70,000 resources, and you may also take online courses on grant-writing and may find a number of invaluable strategies to assist you with building upon the work you already do. Again, in all your work, remember meaningfully to include qualified people with disabilities.

What better way to maximize your productivity in development of effective and innovative approaches to emergency preparedness for people with disabilities than by learning from the work that has already been done by others? Toward this end, the U.S. Department of Homeland Security, through its Office for Civil Rights and Civil Liberties headed by Director Daniel W. Sutherland, has established a centralized site that brings together hundreds of informational resources in the field. Visit and contribute to the content of www.DisabilityPreparedness.gov, and see what happens when you learn from the examples set by government agencies, non-profit organizations, private sector businesses, and others. (DOJ's Civil Rights Division is proud to have worked in close collaboration with almost two dozen agencies to assemble the site's content.) For additional tools and resources, also see www.DisabilityInfo.gov, which particularly features (among other things) disability preparedness and the workplace with coordination by the U.S. Department of Labor's Office of Disability Employment Policy.

Finally, last but certainly not least, I want to repeat the official disability rights website of the Department of Justice, which is devoted specifically to providing information to people with disabilities and their families about their rights and responsibilities under the law. As you have seen, the website URL is both easy to remember and easy to pass along. It is www.ada.gov. Visit today, and visit often. The website is updated regularly, so it would do you well to bookmark it on your desktop.

CONCLUSION

Now, my friends, you are armed. I have given you the basics surrounding emergency preparedness and people with disabilities, and I have provided you with various ways to reach out to leaders and members of the disability community. As leaders in the emergency preparedness field in this state, the next steps are up to you. I respectfully urge you not to think of people with disabilities as an afterthought but rather to involve us in every facet of what you do. We want to contribute, and we are eager to help. We believe very strongly in the value of self-determination, and one important area in which this is so critical is emergency preparedness. "Nothing about us without us."

In looking at where we are, the process of planning for accessibility in emergency preparedness is in its infancy. We have much to learn and to accomplish. It is vital to include people with disabilities at all stages of this process.

It will be important for us to share innovative practices and to learn from experience. We have already learned much from responses to earthquakes, rolling blackouts, and wildfires in California ; tornadoes in Kansas; and hurricanes in Florida. Let us individually and collectively take our work to the next level.

We in the Department of Justice are already working actively with the Department of Homeland Security and other agencies on the Interagency Coordinating Council on Emergency Preparedness and Individuals with Disabilities. We look forward to being a resource as we strive to centralize emergency preparedness information that is both user-friendly and pertinent to the work of various stakeholders including disability organizations, emergency preparedness professionals, social service agencies, government entities, first responders, private sector businesses, and others.

Working together, we can make America a more secure and safe place for all of its people, including people with disabilities. Let's get it done!


Prepared Remarks of Dov Lutzker, Esq.
Special Counsel, Disability Rights Section
Civil Rights Division
U.S. Department of Justice

Disability and Special Needs Technical Assistance Conference:
Emergency Preparedness, Response, and Recovery

National Organization on Disability
Tuesday, January 8, 2008
Capital Hilton, Washington, DC

Good morning. During the past year, the Civil Rights Division has been issuing a technical assistance series known as the ADA Best Practices Tool Kit for State and Local Governments. In the Tool Kit, we explain how the basic requirements of the ADA apply to different state and local government programs, services, and activities. We also provide checklists to help state and local officials determine if they are in compliance with ADA requirements. Finally, we provide action plans to help governments that are not in full compliance get there.

Our most recent chapter of the Tool Kit deals with a critically important area – emergency management. People with disabilities represent, on average, at least 15% of every community in the United States . Yet, the needs of this significant segment of the population have often been overlooked in preparing for emergencies. One reason for this is a knowledge gap – people in the emergency management field have often not had background or experience dealing with people with a variety of disabilities or have not had much training about disability rights laws.

The Civil Rights Division issued Chapter 7 of the Tool Kit to address this knowledge gap. In the chapter, we discuss how the requirements of the ADA apply to the various aspects of emergency management, from planning and preparedness, to notification, evacuation, and sheltering and, finally, to recovery and remediation. We provide a checklist for evaluating the accessibility of shelters. We also provide a checklist for use in evaluating the ADA compliance of policies and procedures.

Throughout Chapter 7, we identify certain key steps to meeting the needs of people with disabilities in emergencies:

1. Emergency planners and managers must have basic working knowledge of the accessibility and nondiscrimination requirements applicable under the ADA;

2. Emergency planners and managers must know the demographics of the population of people with disabilities who live in their community and the types of disabilities these people have;

3. Emergency planners and managers must involve people with different types of disabilities in identifying disability-related needs in communication, transportation, accommodations, supportive services, equipment, and supplies that residents and visitors with disabilities will need during an emergency: and

4. Emergency managers and planners must identify and publicize the resources their community will have available and ready to use when an emergency strikes to meet the needs of residents and visitors with disabilities.

The ADA requirements set out in Chapter 7 of the Tool Kit all flow from basic principles embodied in the ADA. These include:

INCLUSION

People with disabilities have the right to participate in all emergency programs, services, and activities provided by governments, private businesses, and nonprofit organizations. A person may not be refused access or participation simply because of a disability.

Example – Notification: When an emergency is imminent, everyone must be notified and receive the information they need to take responsible, appropriate action.

EQUAL ACCESS

People with disabilities must be able to access and benefit from emergency programs, services, and activities equally with everyone else.

Example – Evacuation: People with disabilities, including people who use wheelchairs and scooters for mobility, must have transportation that can safely get them to the right place, even if they cannot travel independently to pick-up areas. Some people need transportation starting from their home. Others need wheelchair-accessible transportation. In addition, like other members of the public, people with disabilities must be able to evacuate with their families or care giver, and take clothing and other personal items they may need in a shelter with them. People with disabilities may need to be transported with oxygen tanks or other medical equipment, service animals, or adaptive equipment that they need to function independently in addition to the clothing and personal items that everyone else needs.

INTEGRATION

Emergency programs, services, and activities typically must be provided in an integrated setting. To provide emergency shelter in an integrated setting, basic support services must be available, such as assistance in wayfinding, eating, dressing, transferring to or from a wheelchair, toileting, and reminders to take medication. Assistance and social/human services must be provided to all individuals through the same application and review process - not separately or after the fact.

Example – General Population Shelters: People who use wheelchairs may not be required to go to a separate shelter from the general population and may not be sent to a different shelter from family members or other people who provide them with support. Shelters need to house people with varied disabilities and provide the supportive services they need to function in that setting. If a person with a disability has a medical condition requiring hospitalization, family members and others who provide support may not be involuntarily separated.

SELF-DETERMINATION

Emergency programs, services, and activities must be provided in a manner that results in an optimal level of functional independence for people with disabilities. People with disabilities have the right to participate in programs designed to serve the general public. Individuals with disabilities are the most knowledgeable people to determine their needs – instead of trying to guess or predict what their needs may be, just ask them.

Example – Emergency Planning and Operations: Emergency planners sometimes assume that they know what will be best for people with disabilities and design evacuation, sheltering, and other emergency programs based on those assumptions. But those assumptions are frequently wrong, since even people with the same type of disability have different abilities and needs. People with disabilities have the right to make choices about the options that will best meet their needs. Like everyone else, in order to make informed choices, people with disabilities need accurate information about their options for emergency preparedness, sheltering in place, evacuation, transportation, sheltering, housing, and participation in other emergency programs.

PHYSICAL ACCESS

Emergency programs, services, and activities must be provided at locations that all people can access, including people who use wheelchairs, scooters, and other mobility aids and people with limited stamina. People with disabilities must be able to enter and use emergency facilities. Accessible features include parking, drop-off area, entrance and exit, security screening areas, toilet rooms, bathing facilities, sleeping areas, dining facilities, other areas where programs, services, or activities are provided. If a designated emergency facility is not accessible to people with disabilities, it needs to be made accessible, either through permanent or temporary means, or a different facility needs to be chosen.

Reasonable Modifications to Policies, Practices, and Procedures

Rules, policies, practices, and procedures used in emergency programs and emergency facilities may not deny equal access to people with disabilities. Program and facility operators must make reasonable modifications to rules, policies, practices, and procedures to provide equal access to individuals with disabilities.

Example 1 – Emergency Programs and Facilities: Public transportation and other facilities that provide housing or services during an emergency often have a "no pets" policy. Some have mistakenly applied this policy to exclude service animals such as guide dogs for people who are blind, hearing dogs for people who are deaf, service dogs that pull wheelchairs, assist with balance, or retrieve dropped objects, and other animals that provide assistance to people with physical or mental disabilities.

Example 2 – Shelters: If meals are served in shifts, remember that people with disabilities may take a longer time to eat, and allow them extra time to finish their meal. People with diabetes may need access to food at unscheduled times because of fluctuating blood sugar levels. People with food allergies may require different types of food.

EFFECTIVE COMMUNICATION

People with disabilities must be given the same information that is given to the general population, and they must be notified in an emergency in a way that is understandable to them, and timely. Consider communication formats for those who are blind or have low vision, those who are deaf or hard of hearing, and those with speech, or cognitive disabilities. Auxiliary aids and services must be furnished when necessary to ensure effective communication with people with disabilities. These include sign language interpreters, use of video relay service, teletypewriters (TTYs), pen and paper to facilitate exchange of notes, message boards, written materials in Braille, large print, and people to assist in reading and filling out forms.

People with Disabilities Are Individuals: No "One Size Fits All"

Individuals with disabilities do not all require the same accommodations and do not all have the same needs. There are many different types of disabilities that affect people in different ways. Emergency planning should consider the needs of people who use mobility aids, people who require portable medical equipment, people who ordinarily rely on personal care attendants, people who use service animals, people who are blind or have low vision, people who are deaf or hard of hearing, people who have a cognitive disability, people with mental illness, and those with other types of disabilities. Individuals with disabilities require different levels and types of supports. Do not assume that a person with a disability needs assistance or that specific types of assistance will be helpful to all people with the same type of disability. The best way to determine if a person with a disability needs assistance, or if assistance is needed, what type to provide, is to ask that individual what he or she needs.

CONCLUSION

The Department of Justice continues to be active in advancing the rights of people with disabilities at the local, state, and national levels. It is the responsibility of and every one of us to do our part. Thank you.

 

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