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12/16/94 MAF:AMP:ls DJ# XX
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? 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 cc: Records CRS Chrono Pecht Friedlander Breen FOIA UDD\PECHT\TECHASST.LTR\BETTS.LTR 01-03521 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. 01-03522 3 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.1 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 _____________________ 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 S 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. 01-03523 4 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 01-03524 5 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. 01-03525 6 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 S 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) 01-03526 Federal Emergency Management Agency Washington, D.C. 20472 Ms. Stewart B. Oneglia Chief, Coordination and Review Section Civil Rights Division Department of Justice P.O. Box 66118 Washington, D.C. 20035-6118 Dear Ms. Oneglia: This letter is a request from the Federal Emergency Management Agency (FEMA) for 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. The American Red Cross (ARC) is charged with responsibility for sheltering and feeding persons displaced by disaster. This service is to be provided regardless of whether the community involved becomes a Presidentially declared disaster area. Indeed, the shelters and mass feeding facilities are open long before the formal process leading to a Presidential declaration has begun. Shelters may be located in a wide variety of buildings. The most-often used facilities are schools, churches, and government buildings such as civic centers. Except as noted below, the ARC is charged with designation of shelters, provision of supplies, and deployment of volunteer and paid staff. Supplies usually consist of a limited variety of food and an even more limited range of medical supplies. Nurses either may be volunteers or ARC professionals, and doctors normally are volunteers. For the past several years the ARC has followed a policy that has led to the exclusion from shelters of many persons, most of whom would be considered disabled, who are frail or who have serious medical conditions. In Numbered Notice 5 to all chapters, dated March 25, 1987, the national ARC said: The American Red Cross cannot and should not guarantee comprehensive medical services for the frail elderly, post
surgical, home care patients, and others in need of specialized medical care (e.g. stroke victims, dialysis patients, or those requiring specialized medical equipment, such as oxygen, urinary catheters, tube feeding, intravenous fluids, etc.). The health of the local community and the responsibility for the provision of care for disaster victims with such special needs rests with local public health authorities ... With the reaffirmation of current regulations and procedures affecting Red Cross health 01-03527 2 services in shelters, the American Red Cross and its individual chapters will not consider, approve or be responsible for the opening of shelters designated as "special needs" shelters. In Numbered Notice 56 of January 3, 1992, ARC reiterated the policy as follows: Because the level of care required exceeds Red Cross protocols, responsibility for care of these shelter residents rests with Public Health authorities, who are responsible for the health of the general public. This responsibility MAY NOT (emphasis in original) be delegated to Red Cross. Red Cross may augment public health staff upon request, provided sufficient local Disaster Health Services staff with the appropriate clinical skills are available; however, adequate personnel to cover our own mission must remain our priority. Both Numbered Notices are attached. In support of its policy, the ARC argues that these so-called "special needs" persons should go to a hospital or other medical facility instead of a shelter. Many such people, however, are not actually in need of hospitalization, and would not be admitted. Even if they required hospitalization, they might find themselves in a situation in which the medical facilities have evacuated and closed. Not all "special needs" shelters would require comprehensive medical care, but observation and some sort of support. Public health departments rarely have the staff and expertise to deal with large numbers of frail elderly or medically impaired persons. This letter was drafted prior to the Northridge earthquake of January 1994. This office has been informed by reliable sources that few, if any, Red Cross shelters in greater Los Angeles have
been accessible. Reports have come to us of people being turned away from shelters who did not have serious medical conditions, but were simply in wheelchairs. Our interest in this subject stems from the potential relationship possible between local ARC chapters and the jurisdiction's Emergency Management Agencies (EMA's), most of which receive Federal financial assistance from FEMA through the annual Comprehensive Cooperative Agreement. That relationship varies from community to community. To cite an example from one end of the continuum, the Sarpy County, Nebraska, EMA does not participate in any aspect of sheltering, including the designation of shelter sites. By contrast, the San Francisco Office of Emergency Services is heavily involved in site selection. The Dade County, Florida, EMA entered into an agreement with the Miami ARC to provide medical staff for "special needs" shelters during Hurricane Andrew. 01-03528 In summary, our questions are: 1. Is the current ARC policy a violation of Section 504 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? 3. Is an EMA in violation of these statutes or implementing regulations by participating in any portion of shelter operations? If you have questions or require further information, please call Alan Clive, Civil Rights Program Manager, at 646-3957 (V) or 6463401 (TDD). Sincerely, Adell Betts Director Office of Equal Rights Attachments 3 01-03529 DISASTER SERVICES
Date: Jan 3, 1992 Number: 56 Originating Department: Disaster Services Intended Audience: All paid and volunteer Disaster Services staff, Chapter Chairmen and Managers, all ARC 3000 Series recipients Subject: DISASTER HEALTH SERVICES COVERAGE IN SHELTERS The purpose of this Numbered Notice is to provide an update and clarify issues surrounding the provision of medical and nursing services in Red Cross operated shelters. This Notice supplements Numbered Notice #5, and will delineate the roles and responsibilities of Red Cross Disaster Health Services and those of Public Health. It also provides an organizational definition of the term "special needs". A memorandum to Disaster Services from the Office of the General Counsel, National Headquaters, concerning "special needs shelters" states the following: "In the past we have had several discussions concerning the American Red Cross' responsibility or authority to open special needs shelters. A Numbered Notice dated March 25, 1987 was issued in an attempt to clarify that the Red Cross cannot guarantee comprehensive medical services for the frail elderly, post surgical, home care patients, and others in need of specialized medical care. That Numbered Notice reiterated long-standing Red Cross policy. The Red Cross should assist in the supplementation of these types of health care services when so requested by the local health authorities. However, the Red Cross should not hold itself out as operating special health care shelters. If a Red Cross chapter were to open such a special facility, it would be serving as a pre-hospital facility requiring access to more sophisticated services and products than are typically available at a Red Cross first aid shelter." DISTRIBUTE AS MARKED (Indicate Management Level) (Indicate Appropriate Service Area) International KRC Management Communication Nursing Territorial Chapter Computers and Systems Safety
Management Blood Services Management 01-03530
Disaster ILLEGIBLE Financial Accounting Supply Financial Development Volunteer Office
DHS Responsibilities in a Shelter DHA responsibilities are limited to first aid level care of all shelter residents. The limits of this care are spelled out in the Disaster Health Services Protocols (ARC 3050P). These protocols are to be signed yearly by a local doctor, and changed, as necessary, to reflect new research findings and procedures about items listed in ARC 3050P. An example of a protocol that should be changed is the treatment for a snake bite which, in the Advanced First Aid and Emergency Care textbook, is an outdated procedure. The physician signing the Protocols cannot add responsibilities or types of treatment to those issued by national headquarters. In addition to providing first aid care, DHS workers provide access to medical care and health services by: * making assessments of the health needs of the shelter population. * securing the services of a licensed mecical practitioner (M.D., D.O., dentist, opthomologist, etc) for a shelter resident needing such services. Doctors working as Red Cross volunteers in shelters are subject to the same levels of care provision as all other DHS workers, and as described in the current edition of Advanced First Aid and Emergency Care. They may make assessments, and recommend transport to a medical facility for treatment of conditions exceeding the level of care allowed by ARC 3050. Under these guidelines, doctors will be covered by Red Cross general liability insurance. Victims requiring more comprehensive medical services from a doctor should be referred to the doctor's office. If necessary, payment may be made by Red Cross based on the guidance supplied in ARC 3050. * requesting assistance from the local EMS provider or private ambulance company for a resident who requires emergency transport to a facility which provides direct medical care. * making arrangements through a licensed medical practitioner for replacement of prescription items needed by a shelter resident. * through coordination with Mass Care, securing the proper types of food for residents with special dietary needs, either provided by the Mass Care function or through the dietary department of a local
hospital. DHS personnel are also responsible for acting in a liaison capacity between shelter management and nursing home and Public Health administrators. 2 01-03531 Disaster Operations American Red Cross National Sector Washington, D.C. 20006 Notice Date: March 25, 1987 Number: 5 Originating Department: Disaster Operations Intended Audience: Field Management, Disaster Services Directors and ARC 3000 Series Recipients Subject: Policies and Procedures Affecting Health Services in Shelter Situations A number of current trends in health care are impacting or may soon impact the provision of health services offered in Red Cross shelter situations. The regulations and procedures governing the provision of disaster health services in shelter situations are designed to promote health, to prevent disease, to treat minor illnesses and injuries and to refer for medical care the seriously ill and injured. To accomplish this, twenty-four hour medical and nursing coverage must be established for all Red Cross shelters. The American Red Cross cannot and should not guarantee comprehensive medical services for the frail elderly, post surgical, home care patients, and others in need of specialized medical care (e.g. stroke victims, dialysis patients, or those requiring specialized medical equipment such as oxygen, urinary catheters, tube feeding, intravenous fluids, etc.). Distribution: VP & VP/GMs, DOH at NHQ & OHQ Managing Directors, FSMs, Chapter Chairmen/Managers, Blood Center Chairmen/Managers, SAF Station Chairmen/Managers, PRDs. American Red Cross Form 6470-E 01-03532
The health of the local community and the responsibility for the provision of care for disaster victims with such special needs rests with local public health authorities. At the request of said authorities, the American Red Cross may assist in the supplementation of services at the request of and under the supervision of the local health authorities. When such a request is made, disaster health services provides a professional assessment of the health needs of shelter residents and recommends appropriate Red Cross action. The director of the disaster relief operation, disaster health services, and the local health authorities then jointly determine the most appropriate plan of action to meet those needs. Should the solution be the opening of a temporary infirmary within the shelter, the procedures in ARC 3050 must be followed. The local public health authority must make such a request and is responsible for the supervision of personnel, provision of care and general operation of the infirmary. The Red Cross assists, supplements, and cooperates to the extent jointly agreed upon. With the reaffirmation of current regulations and procedures affecting Red Cross health services in shelters, the American Red Cross and its individual chapters will not consider, approve or be responsible for the opening of shelters designated as "special needs" shelters. Red Cross units in areas of the country vulnerable to disasters must ensure that preparedness plans include agreements with the local public health authorities in the event that temporary infirmaries must be established within shelters. Referrals within the local community for specialized care for disaster evacuees should be determined before a disaster strikes. A Red Cross chapter may not assume financial, administrative, or medical responsibility for "special shelters". For additional information regarding this topic, units may contact the National Director of Disaster Operations, Directors of Disaster Services at the Operations Headquarters or the following individuals: Judy Isaacson, RN, Chief of Disaster Health Services, MOH and Functional Lead for DHS Patricia Snyder, RN, Volunteer Consultant for Disaster Health Services, WHO Patricia Watts, RN, Chief of Disaster Health Services, EOH 01-03533
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