# 156 DJ# 204-012-00058 III-1.1000 III-1.2000 III-1.7000 III-3.2000 III-4.

2000 III-4.3000 III-4.4200 II-5.1000 Ms. Adell Betts Director Office of Equal Rights Federal Emergency Management Agency Washington, D.C. 20472 Dear Ms. Betts: This letter is in response to your letter requesting an advisory opinion on various issues dealing with the impact of the Americans with Disabilities Act of 1990 (ADA) on the provision of shelter and mass care during and after a disaster. In your letter, you describe American Red Cross (ARC) policies that may limit the ability of individuals with disabilities to take advantage of the disaster relief services provided by the ARC to members of the general public. Your concern arises out of the possible relationships that may arise between the ARC and local Emergency Management Agencies, which receive Federal financial assistance through your agency, the Federal Emergency Management Agency (FEMA). Specifically, you ask the following questions: 1. Is the current ARC policy a violation of Section 504 [of the Rehabilitation Act of 1973, as amended] or of Titles II or III? If so, why? If not, why not? 2. What sort of physical or other type of access is legally required in a mass care shelter? December 19, 1994

3. Is an Emergency Management Agency in violation of these statutes or implementing regulations by participating in any portion of shelter operations? Given the number of interrelationships that may occur among these entities, some of which you describe in your letter, and the fact that your letter does not fully describe the legal responsibilities that apply to each, we are unable to provide a comprehensive answer. We have, therefore, tried to set forth the applicable general requirements. Emergency shelters set up by the American Red Cross are clearly places of public accommodation subject to Title III of the ADA, which prohibits discrimination against individuals on the basis of disability by any private entity (whether or not established for profit) that owns, leases (or leases to), or operates a place of public accommodation. See 36.201 of the enclosed Title III regulation. To be considered a "place of public accommodation" under Title III of the ADA, a facility must be operated by a private entity, its operations must affect interstate commerce, and it must fall within one of the 12 categories listed in 36.104 of the regulation. Each category includes representative examples of covered facilities. However, the examples included are meant to be illustrative, not exhaustive. Thus, a facility does not have to be specifically listed in order to be covered. Shelters operated by the ARC would be considered "social service center establishment[s]," a category that includes senior citizen centers and homeless shelters. Such shelters may also be considered "service establishment[s]," a category that includes the professional offices of health care providers and hospitals. As a public accommodation, that is, as an entity that operates a place of public accommodation, the ARC is fully subject to the requirements of Title III. It cannot discriminate against individuals with disabilities on the basis of disability in the full and equal enjoyment of the services it provides. See ​36.201(a) of the Title III regulation. The ARC is free to define the type of services it will provide during emergencies. Thus, if the ARC defines its mission as providing shelter, basic nutrition, and basic medical care during times of emergency, this policy does not violate the ADA. It would, however, violate the ADA if the ARC refused to provide these same services to individuals with disabilities, such as individuals who use

wheelchairs or persons who are blind or deaf. The ARC must also make reasonable modifications to its policies, practices, or procedures if those modifications are necessary to make its services available to persons with disabilities. See 36.302(a) of the Title III regulation. Modifications are not required, however, when the ARC can demonstrate that making such modifications would fundamentally alter the services provided. In practice this could mean that the ARC may be required to perform some additional services for individuals with disabilities. It is would not, however, be required to convert its shelters into comprehensive, state of the art, medical facilities. From the ARC's Numbered Notice 5, which you have enclosed with your letter, and from your description of individuals turned away from shelters, it appears that the ARC is failing to distinguish between two classes of individuals, those with disabilities who are medically stable (for example, individuals who use mobility aids, such as wheelchairs, as a result of a past injury or illness) and individuals who may or may not have disabilities, but who are acutely ill. Barring medically stable individuals with disabilities from entrance to ARC shelters solely on the basis of their disability would, in most cases, violate Title III of the ADA. Failing to make reasonable modifications to shelter policies, practices, and procedures to accommodate such individuals also violates the ADA, unless the American Red Cross can demonstrate that making such modifications would result in a fundamental alteration to the service provided. As a practical matter, this means that the ARC should not assume that all people with visible disabilities are ill and require hospitalization or specialized medical care. Shelters should, as a matter of course, be prepared to accept medically stable individuals with disabilities. This group may include, but is not limited to, people with mobility impairments, blind individuals (and their service animals), people who are deaf, individuals who have cerebral palsy, and people with muscular dystrophy and other disorders that may be degenerative, but who are not acutely ill. The ARC should be prepared to make reasonable modifications to its policies in order to accommodate such individuals. For example, shelter staff should be prepared to assist paralyzed individuals in transferring to bed and with basic health care procedures. With respect to individuals who are acutely ill, as noted

above, the ARC is not required to provide comprehensive medical facilities. In most cases, however, it would violate the ADA if ARC shelters were to deny acutely ill individuals with disabilities the right to enter shelters, while permitting acutely ill, non-disabled individuals to enter. Although the ARC may refer such individuals to hospitals or other facilities that are more capable of handling specialized medical care, it may wish to set up systems to ensure that acutely ill individuals are, in fact, able to reach such alternative care facilities, and that these facilities are open and operating under disaster conditions. The American Red Cross is subject to a number of other obligations under Title III of the ADA. For example, it must remove architectural barriers in its facilities, when such removal is readily achievable. It must also provide auxiliary aids and services where necessary to ensure effective communication with individuals who have disabilities. See ​ 36.303 and 36.304 of the Title III regulation. If the ARC is a recipient of Federal financial assistance, it must comply with the funding agency's regulations implementing Section 504 of the Rehabilitation Act of 1973, as amended (Section 504). The requirements of Section 504 are substantially the same as the requirements of Title II of the ADA, which are described below. The operations of a State or local Emergency Management Agency (EMA) are governed by Title II of the ADA, which prohibits discrimination against qualified individuals with disabilities on the basis of disability in services, programs, or activities conducted by a State or local governmental entity, such as an Emergency Management Agency. A copy of the regulation implementing Title II is enclosed for your convenience. Title II of the ADA is based on Section 504, and the following discussion is applicable to both laws. The focus of Title II of the ADA and its implementing regulation is to ensure that, to the extent that a State or local governmental entity provides programs, services, and activities to the public, they are readily accessible to and usable by individuals with disabilities. Program access is discussed in Subpart D of the enclosed Title II regulation. Under the "program access" requirement, a public entity must operate each of its services, programs, and activities, so that when viewed in its entirety, that service, program, or activity is readily accessible to and usable by individuals with disabilities. See

​35.150(a) of the Title II regulation. Your letter does not include a discussion of the scope of the duties legally required to be performed by EMA's or the statutory framework under which EMA's operate. It also lacks a discussion of the relationship between the ARC and individual EMA's. If EMA's are required to arrange for emergency shelter care in their respective jurisdictions, they may either do so directly, or they may provide such services through third parties, such as the ARC. However, as a covered entity, an EMA must ensure that such third parties comply with the requirements of Title II in delivering services on its behalf. If, however, EMA's are not obligated to provide shelter services, and do not, in fact, provide such services, they do not violate the ADA simply by providing assistance to the ARC. However, each aspect of the sheltering process in which an EMA participates, must be performed in a nondiscriminatory manner. For example, your letter states that EMA's may participate in the selection of shelter sites. Under Title II, such sites must be selected in a nondiscriminatory manner. See 35.130(b)(4). You also include an example in which a Florida EMA agreed to provide medical staff for a "special needs" shelter. In the latter example, the activities of the Florida EMA are basic to the provision of the service, and, consequently, the EMA would have a substantial obligation to ensure that shelter operations did not violate Title II of the ADA (and Section 504, if that EMA is a recipient of Federal financial assistance). Thus, in response to your question, whether an EMA is in violation of Title II of the ADA is a question of fact that depends on both the EMA's statutory responsibilities and on the degree to which the EMA is involved in shelter operations. This same analysis would apply in determining whether an EMA that receives Federal financial assistance through FEMA is in violation of Section 504. Finally, you ask what type of access is required in a mass care shelter. You note that the most frequently used facilities are schools, churches, and government buildings, such as civic centers. This question raises a unique issue because of the short-term and sporadic use of facilities. Title III entities, such as the ARC, are required to eliminate architectural barriers in existing facilities when such

barrier removal is readily achievable, that is, easily accomplishable and able to be carried out without much difficulty or expense. See 36.304 of the Title III regulation. Title III also contains accessibility standards which must be followed when constructing or altering buildings and facilities subject to Title III. However, given the nature of the ARC's use of buildings for emergency shelters (we are assuming that the ARC does not own or lease most shelter facilities), these portions of the Title III regulation may not be generally applicable. Even if these specific provisions are not applicable, the ARC is obligated to comply with the general requirements of Title III found in ​36.201 through 36.204 of the Title III regulation. Among other things, the general requirements prohibit a public accommodation from denying individuals with disabilities the right to participate in the services the public accommodation provides and from providing such individuals with segregated or inferior services. These issues are best addressed at the planning stages by selecting, to the greatest possible extent, facilities that are physically accessible. If an EMA is responsible, either individually, or with the participation of the ARC, for selecting buildings to be used as shelters, it must comply with Title II of the ADA in doing so. Under the Title II regulation, it is not necessary for a public entity to make each of its existing facilities accessible, as long as it complies with Title II's "program access" requirement and ensures that its programs and activities, when viewed in their entirety, are readily accessible to and usable by individuals with disabilities. However, given the unique nature of disaster relief, it may not be sufficient to have only designated facilities accessible. Under disaster conditions it may be impossible for an individual to reach the "designated" accessible shelter or safety concerns may dictate that the individual take shelter immediately. Under these circumstances, in selecting shelter sites, public entities (as well as private disaster relief agencies) may wish to follow the guidance for leasing buildings suggested by this Department in the Preamble to its Title II regulation. As noted in the Preamble, existing buildings leased by a public entity are not required to meet accessibility standards simply by virtue of being leased. However, at a minimum, the Department encourages public entities to lease space that complies with the minimum standard applicable to the Federal government when it

leases space. That standard is discussed in the Preamble to ​35.151 of the Title II regulation. The three elements of the standard are: (i) an accessible route from an accessible entrance to the areas where the primary activities for which the building was leased take place; (ii) accessible toilet facilities; and (iii) accessible parking facilities. Selecting space that complies with this minimum standard, while not required, will greatly facilitate both a public entity's obligation to provide program access, and a private entity's obligation to avoid discrimination on the basis of disability. I hope this information has been of assistance to you. If you require further assistance or advice, please do not hesitate to write. The Department can also be reached through its ADA Information Line at (202) 514-0301 (Voice) and (202) 514-0383 (TDD) 1:00 p.m. to 5:00 p.m., Monday through Friday. Sincerely,

Merrily A. Friedlander Acting Chief Coordination and Review Section Civil Rights Division Enclosures (2)

1 The only exception to this requirement arises when an individual poses a direct threat to the health or safety of others, and that threat cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids and services. See 36.208 of the Title III regulation for the definition of the direct threat exception and for a discussion of the very limited circumstances under which it may be applicable.