Deaf Alabama

Law Center
814 Thayer Avenue
Silver Spring, MD 20910-4500

(301) 587-7730 (Voice or TTY)
(301) 587-0234 (Fax)

RESPONSIBILITES OF STATE AND LOCAL GOVERNMENT AGENCIES UNDER TITLE II OF THE ADA

Deaf and hard of hearing individuals are entitled to effective communication with state and local governments agencies. Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§12131-12134, forbids discrimination by any public entity. This federal law applies to all types of state and local government agencies and entities, including courts, schools, social service agencies, legislatures, commissions and councils, recreational facilities, libraries, and departments and agencies of all kinds.

The U.S. Department of Justice has issued regulations explaining the requirements of that Act, 28 C.F.R. Part 35, 56 Fed. Reg. 35694 (July 26, 1991) (U.S. Department of Justice Final Rule: Nondiscrimination on the Basis of Disability in State and Local Government Services).

Under the ADA and its regulation, local and state agencies are required to provide qualified interpreters, TTYs, visible warning devices, captioned materials and other auxiliary aids, to ensure effective communication with deaf and hard of hearing individuals. The Department of Justice regulation specifically states:

(a) A public entity shall take appropriate steps to ensure that communications with applicants, participants, and members of the public with disabilities are as effective as communications with others.
(b) (1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of a service, program, or activity conducted by a public entity.
(2) In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.

28 C.F.R. §35.160 (emphasis added).

There are many types of auxiliary aids and services that may be necessary for effective communication. Furthermore, an auxiliary aid that is effective for one person might not be effective for another person. The Department of Justice regulation defines the term “auxiliary aid” comprehensively:

[q]ualified interpreters, notetakers, computer-aided transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunication devices for deaf persons (TDD’s), videotext displays, or other effective methods of making aurally delivered materials available to individuals with hearing impairments.

28 C.F.R. 35.104.

The appropriate auxiliary aid depends on many factors, such the type of communication used by the individual and the situation in which communication is occurring. An auxiliary aid that is appropriate for one person, or in one context, may be useless in another setting or for a person with a different type of hearing loss.

The individual with disabilities should be deferred to in the choice of what auxiliary aid or service is appropriate for the individual:

In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.

28 C.F.R. §35.160(b)(2).

The Analysis of the ADA regulation states:

The public entity must provide an opportunity for individuals with disabilities to request the auxiliary aids and services of their choice. This expressed choice shall be given primary consideration by the public entity…The public entity shall honor the choice unless it can demonstrate that another effective means of communication exists or that use of the means chosen would [constitute an undue burden].

56 Fed. Reg. at 35711, 35712. The deaf individual’s own assessment of the necessary type or level of service is entitled to “primary consideration.”

For a deaf person who relies on sign language, it is clear that the ADA usually requires provision of qualified sign language interpreter services when that service is needed to ensure effective communication with public agencies. The U.S. Department of Justice has defined “qualified interpreter”, for purposes of Title II, to mean:

…an interpreter who is able to interpret effectively, accurately and impartially both receptively and expressively, using any necessary specialized vocabulary.

28 C.F.R. 35.104. Although the definition does not require “certified” interpreters, it does require interpreters with the necessary skill to interpret accurately in the particular context.

The agency may not charge the individual for providing auxiliary aids and services.

This material was prepared by the National Association of the Deaf Law Center. It is intended solely as informal guidance. This material is not legal advice. For technical assistance and additional information about how laws against discrimination apply to you, contact the NAD Law Center, a local attorney, or an enforcement agency.