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Unofficial Opinion 97-9

Unofficial Opinion 97-9

February 27, 1997
To: 

Speaker of the House
of Representatives

Re: 

The General Assembly must offer to qualified individuals with disabilities appropriate auxiliary aids or services when necessary to provide an equal opportunity to take part in programs and services during the legislative session.

You have requested my opinion regarding the General Assembly's responsibilities in providing reasonable access to the legislative process pursuant to the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq. It is my opinion that the General Assembly must offer to qualified individuals with disabilities appropriate auxiliary aids or services when necessary to provide an equal opportunity to take part in programs and services during the legislative session.

In order to address the specific responsibilities of the General Assembly, it is first necessary to examine the requirements of the ADA itself. Title II of the ADA prohibits discrimination in the provision of public services on the basis of a disability.

The ADA requires that a public entity must take appropriate steps to insure that qualified individuals with disabilities are provided with appropriate auxiliary aids or services when necessary to give that individual an equal opportunity to take part in any services, programs, or activities conducted by the

public entity. 28 C.F.R. § 35.160(b). To constitute a "disability," a condition must substantially limit a major life activity. 28 C.F.R. § 35.104.

There is no absolute standard on when an impairment is a substantial limitation. The ADA Technical Assistance Manual, for example, provides that although a person who is deaf is substantially limited in the major life activity of hearing, a person with a minor hearing impairment may not be substantially limited. ADA Technical Assistance Manual: II-2.4000.

"Auxiliary aids and services" are provided in the same way that an employer must make a reasonable accommodation for a hearing impaired individual. A reasonable accommodation is defined as a modification or adjustment that provides equal benefits and privileges that are enjoyed by others. 29 C.F.R. § 1630.2(o). The ADA clarifies that such modifications are to ensure equal privileges, but may not be able to ensure that individuals receive the same results of those benefits and privileges or precisely the same benefits and privileges as others. 29 C.F.R. § 1630.2(o)(i). The type of auxiliary aid or service should be determined on a case by case analysis.

It should be noted that when determining what type of modification or accommodation is to be used, the Act provides that "a public entity shall give primary consideration to the requests of the individual with disabilities." 28 C.F.R. § 35.160(b)(2). "Primary consideration" means that the public entity should honor the disabled individual's choice, "unless it can demonstrate that another equally effective means of communication is available, or that use of the means chosen would result in a fundamental alteration in the service, program, or activity or in undue financial and administrative burdens." ADA Technical Assistance Manual: II-7.1100.

A government agency does not have to provide everything that an individual with a disability requests, but must ensure that the accommodation be effective for that individual. 28 C.F.R. § 35.160 Each determination must be made in light of the specific disability and what activity, program, or service is involved to ensure that communication is effective and that the requested accommodation is reasonable. See 28 C.F.R. § 35.160-35.164; ADA Technical Assistance Manual: II-7.1000. On the other hand, the ADA provides that a public entity need not furnish individually prescribed devices or other devices for personal use or study. 28 C.F.R. § 35.135.

I understand that concerns have been raised as to how to properly accommodate a hearing impaired person who wishes to

attend sessions of either the General Assembly itself or legislative committee hearings. In order to determine what would be an appropriate accommodation, it is necessary to look at the specific facts of the request and the accommodation which can be used to serve that specific individual.

For example, if the request were made by a hearing impaired person who uses sign language, then the provision of a sign language interpreter would be an appropriate accommodation for that particular individual. Should such an individual, however, make additional demands (for example, requesting a full time interpreter for his personal use during the session, providing closed captioning on the video monitors or providing assistive listening devices which would not be usable by that individual), those demands would not be reasonable and they would not be required as an accommodation for that particular individual. Providing a qualified sign language interpreter upon proper request for an individual who uses sign language would comply with the ADA.

However, hearing impaired individuals who do not use sign language might also wish to participate in the legislative process. In that case, it might be necessary to explore the use of other auxiliary aids for the use of such individuals. Examples of auxiliary aids and services for individuals who are deaf or hearing impaired include "qualified interpreters, notetakers, 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." ADA Technical Assistance Manual: II-7.1000.

For these reasons, it is my opinion that the General Assembly must insure that qualified individuals with disabilities are provided with appropriate auxiliary aids or services when necessary to provide an equal opportunity to take part in programs and services during the legislative session.

Prepared by:

REBECCA S. MICK
Assistant Attorney General