Massachusetts Office on Disabilities Publications

INTRODUCTION

The Massachusetts Office on Disability (MOD) prepared this pamphlet. Founded in 1981, one of the goals of the Office is to increase awareness of the rights of persons with disabilities, both by persons with disabilities themselves and by the larger community.

Other goals of the Office include:

· The elimination of discrimination against persons with disabilities;

· The creation of a barrier free environment;

· The improvement of the state’s services delivery system for persons with disabilities, and

· The creation of fully integrated and accessible education, housing, transportation and employment in the public and private sectors.

To achieve its goals, MOD engages in activities such as the following:

· Monitors the performance of state and local governments in order to improve the treatment of persons with disabilities;

· Operates an information and referral system, the Client Services Program, and advocates for the rights of individuals attempting to obtain services to which they are entitled and for those who are attempting to enforce their civil rights;

· Operates a Community Services Program which focuses on improving access to public and private facilities in the Commonwealth, and which works with many individuals, community organizations and municipalities to provide education and technical assistance to assure disability rights are enforced.

For further information about the Office on Disability, the details of the laws discussed in this pamphlet, or to obtain assistance in asserting your rights, please access the MOD web site at http://www.mass.gov /mod or call the phone number listed on the cover of this pamphlet.

Notes:

§ The materials contained in this pamphlet ARE NOT under a © copyright. The pamphlet may be quoted or photocopied without consent. However, attribution is requested.

§ Laws and regulations are changed frequently. The materials in the pamphlet reflect the laws and regulations in effect on July 1, 2005. Please refer to the laws and regulations directly for the current text.

ABUSE / NEGLECT / TREATMENT CONDITIONS

Massachusetts Disabled Persons Protection Act

This statute protects disabled persons, including persons with mental retardation, physical disabilities, and head injuries, who are between the ages of 18 and 59, and who, as a result of a disability, are dependent on others to meet their daily living needs. Anyone suspecting abuse can contact the Disabled Persons Protection Commission (DPPC). “Mandated reporters” (physicians, dentists, nurses, teachers, day care workers, etc.) must report cases of suspected abuse. After the suspected abuse is reported, the DPPC investigates allegations of abuse by caretakers only. In some cases, those investigations are referred to an agency within the Executive Office of Human Services for intervention and further investigation. After the investigation (which should be completed within 24 hours if the call is an emergency and 10 days if it is not) protective services are delivered.

For more information or to report a case of abuse:
Disabled Persons Protection Commission
50 Ross Way, Quincy, MA 02169

Individuals receiving treatment for mental illness or mental retardation are entitled to certain rights and privileges, such as sending and receiving mail, receiving visitors, using telephones and living in a humane psychological and physical environment.

Central to these rights is the limitation of the number of days people may be confined to a hospital without a court order.

Enforcement: Notice of the rights created under this law is to be prominently posted in all programs and facilities. Those notices include information about where and how to appeal violations of these rights.

Civil Rights of Institutionalized Persons Act

The Civil Rights of Institutionalized Persons Act (CRIPA) authorizes the U.S. Attorney General to investigate conditions of confinement at State and local government institutions such as prisons, jails, pretrial detention centers, juvenile correctional facilities, publicly operated nursing homes, and institutions for people with psychiatric or developmental disabilities. Its purpose is to allow the Attorney General to uncover and correct widespread deficiencies that seriously jeopardize the health and safety of residents of institutions. The Attorney General does not have authority under CRIPA to investigate isolated incidents or to represent individual institutionalized persons. The Attorney General may initiate civil law suits where there is reasonable cause to believe that conditions are "egregious or flagrant," that they are subjecting residents to "grievous harm," and that they are part of a "pattern or practice" of resistance to residents' full enjoyment of constitutional or Federal rights, including Title II of the ADA and section 504 of the Rehabilitation Act.

U.S. Department of Justice, Civil Rights Division
950 Pennsylvania Avenue, N.W.
Special Litigation Section - PHB
Washington, D.C. 20530

ARCHITECTURAL ACCESS

The Architectural Access Board (AAB) is a regulatory agency whose mandate is to develop and enforce regulations designed to make public buildings accessible to, functional for and safe for use by persons with disabilities. See 521 C.M.R. In addition to writing regulations, the Board decides on variance requests, issues advisory opinions and makes decisions on complaints. Local building inspectors are responsible for enforcing the regulations which are a specialized section of the Massachusetts Building Code. See 780 C.M.R.

The construction, renovation, remodeling, or alteration of a building or facility that is open to the public triggers the authority of the AAB. New construction must fully comply.

§ If the work done in any 36-month period is greater than $100,000, the work being performed XE "work being performed" is required to comply. In addition, an accessible entrance is required. Where provided, public telephones XE "telephone" , drinking fountains and rest rooms must also comply. XE "drinking fountain"

§ If the work done in a 36-month period is more than 30% of the “full and fair cash value” of the building,[1] the entire building must come into compliance.

Enforcement: Anyone can file a complaint with the Board. The Board has the authority to issue variances and impose fines of up to $1000 per violation per day of noncompliance with its order. Call the AAB for the appropriate complaint or variance forms.

The Department of highways is hereby authorized and directed to require the installation of curb-cuts, so called, for the purpose of compliance with the Americans with Disabilities Act, so called, for any highway project involving substantial resurfacing, lane realignment, widening, construction or reconstruction that uses funds of the Commonwealth. Said curb cuts shall be required at any intersection or crosswalk directly located within the scope of any such project, or that abuts or is reasonably adjacent to the scope of such work. The requirements of this section shall apply to any highway project undertaken by said department or a political subdivision of the commonwealth using said funds, but shall not apply to routine maintenance.

The Architectural Barriers Act (ABA) requires that buildings and facilities that are designed, constructed or altered with federal funds, or leased by a federal agency, comply with federal standards for physical accessibility. 41 C.F.R. §101-19.6. ABA requirements are limited to architectural standards in new and altered buildings and in newly leased facilities. They do not address the activities conducted in those facilities. U.S. Postal Services facilities are also covered by the ABA.

AUTOMOBILE S & TRANSPORTATION

Americans with Disabilities Act, Title IIB: Transportation

Public Transportation services, such as buses, subways and rail transit systems, may not discriminate against people with disabilities in the ways they provide their services. New public transit buses and rail vehicles ordered after August 26, 1990 must be wheelchair accessible. Transit authorities that operate fixed route bus or rail systems must provide comparable para-transit or other special transportation services to individuals with disabilities who cannot use fixed route bus services, unless an undue burden would result. Existing rail systems must have one accessible car per train (effective July 26, 1995). Key stations in rapid, light and commuter rail systems should have been made accessible by July 26, 1992, with extensions up to 20 years for commuter rail and 30 years for rapid and light rail for stations needing extraordinarily expensive structural changes. All existing Amtrak stations must be accessible by July 26, 2010. Private businesses that provide public transportation services will have to comply with the same requirements as public transit agencies, except for automobiles. The date for requiring new over-the-road buses (Greyhound-type) to be accessible was July 26, 1996 or 1997, depending on the size of the business. Private businesses which provide transportation (such as hotels) will have to ensure disabled persons a level of service equivalent to the general public.

Under Title III, 42 U.S.C §12183, et seq., The ADA also imposes restrictions on private transportation providers that offer their services to the public. Specifically, they may not impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability. They must make reasonable modifications to their policies, practices, and procedures, provide auxiliary aids and services and remove physical barriers to participation. In some circumstances, private transportation providers must also comply with requirement for the purchase or lease of new accessible vehicles.

Enforcement:
Department of Transportation, FTA, Region 1
55 Broadway Suite 920

Domestic air carriers may not refuse persons with disabilities transportation because of their disability. Some of the provisions include the following: Air carriers may not limit the number of persons with disabilities on a flight, may not require special services (such as advance boarding), may not require advance notice except for certain accommodations, may not require travel with an attendant except in limited circumstances, must provide boarding assistance and assistance within the cabin, must give priority to storage of wheelchairs and may not charge for accommodations required by the law. New aircraft over certain sizes must have movable armrests, accessible lavatories and space for storing wheelchairs (the larger the aircraft the more access is required).

Enforcement: Air carriers must establish their own compliance procedure, including “complaints resolution officials.” Complaints may also be filed with:

Aviation Consumer Protection Division
U.S. Department of Transportation
400 7^thStreet, S.W., Washington, DC 20590

Exempts qualified disabled persons from excise tax requirements. The motor vehicle must be owned and registered by a person who has suffered loss or permanent loss of use of both legs or both arms or loss of vision of both eyes to a certain degree. The exemption applies to only one motor vehicle per person owned and registered for their personal and noncommercial use. Applications for exemptions are available from the local city or town assessor’s office.

This law exempts certain people with disabilities from the purchase and use tax of a motor vehicle. To qualify, a disabled person must be the original registered owner of the motor vehicle and have the loss of two or more limbs or permanent loss of use of at least 80% of two or more limbs. Parents and others, who transport similarly disabled children or adults, who have been found incompetent to legally enter into contracts, may also be entitled to this exemption. See DOR Directive 03-11. The Department of Revenue has clarified that a wheelchair lift used to make a van accessible may also be exempt even if purchased separately from the vehicle. In cases where the lift is purchased after the van, a physician’s prescription may be needed to document this exemption. See DOR Directive 00-7.

A gas station that has both full and self-service pumps must dispense fuel at the self-service pumps at the lower price to persons who have HP plates, placards or disabled veterans plates. At all self-services station with more than one attendant, they are obliged to pump the gas for a person with a disability on request. Signs must be posted at the pumps informing patrons of this information.

Chapter 40 governs a variety of activities by cities and towns, including parking. The primary sections that deal with Handicapped parking are:

G.L. c. 40 § 21, ¶ 23: All parking lots and garages open to the public must comply with the parking regulations of the Architectural Access Board which are similar to but significantly different from the specifications of this Handicapped Parking Law. The Law requires public or private parking areas that are used by the public to reserve designated parking spaces for vehicles, which bear an HP plate, placard or a disabled veteran plate. The minimum numbers for designated spaces are as follows:

Total Spaces	% HP	Minimum #
15 - 25	-	1
26 - 40	5.00%	2
41 -100	4.00%	3
101 - 200	3.00%	4
201 - 500	2.00%	6
501 - 1,000	1.50%	10
1,001 - 2,000	1.00%	15
2,001 - 5,000	0.75%	20
> 5,001	0.50%	30

These spaces must be as near as possible to the building entrance or walkway and adjacent to a curb ramp permitting sidewalk access. The spaces must have above grade signs which bear the words “Handicapped Parking: Special Plate Required Unauthorized Vehicles May be Removed at Owner’s Expense”.

G.L. c. 40 § 22A: In Cities and Towns that have parking meters, people who have an HP plate or display placard are exempt from paying parking meter fees. However, this exemption only applies to meters, not any other type of pay to park system.

G.L. c. 40 §22: People who have an HP plate or display placard are exempt from the time limits on a parking space, such as 15 minutes or 1 hour only, etc. However, this does not exempt plate or placard users from fines or towing when “No Parking” restrictions are in effect, such as snow emergencies, and overnight parking bans.

G.L. c. 40 §22D: A municipality may further regulate parking by restricting certain on-street areas for vehicles bearing HP plates or placards. People who park blocking curb cuts or handicapped parking spaces can be towed.

Enforcement: Fines for parking in a handicapped parking space without a plate or placard range from one hundred dollars ($100) to three hundred dollars ($300). The exact amount is determined by the municipality. Cars may also be towed. Enforcement is by the local police or traffic department.

Websites for Municipalities: http://www.mass.gov/cc/ for individual city and town information.

HP plates and placards are issued through the Registry of Motor Vehicles to eligible people with disabilities. As discussed under the parking laws above, they entitle holders:

The rights, responsibilities and privileges of plate holders and placard holders are the same. The Registry’s Bureau of Medical Affairs determines eligibility according to physician’s documentation. Only people who meet the disability definition and who are the registered owner of the vehicle and who are licensed drivers may receive plates. Anyone who meets the disability definition can get a placard. Individuals who meet the standards for both plates and placards can choose which they prefer. The only practical difference between them is that a plate is permanently attached to one car, while a placard is a card that can easily be moved from one car to another. The Massachusetts Registry of Motor Vehicles also issues temporary placards in some circumstances.

Note: Substantially revised in 2000, the law allows eligible individuals to obtain both a placard and a plate. It removes the previously confusing references to the placard as a type of plate. An individual who uses a handicapped placard without proper authorization is the individual who will be penalized, as opposed to the individual with a disability to whom the placard was issued. A placard may be utilized for parking in association with the transportation of the authorized user of the placard. This change addresses confusion related to the appropriate use of a placard when picking up or dropping off the authorized user. It allows workers with disabilities to use their placard when driving a commercial vehicle, but preserves the time limitations for the utilization of commercial spaces. It increases the fines for unauthorized utilization of handicapped placard from one hundred to five hundred dollars for the first offense and one thousand dollars for subsequent offenses. It specifies that the fines and penalties in this section are in addition to those specified in Section 37E of Chapter 266 for the fraudulent use of another's identity.

Applications for plates and placards are available at the Registry of Motor Vehicles Offices or by contacting:

Massachusetts Registry of Motor Vehicles
Medical Affairs, P.O. Box 199100
Boston, MA 02119-9100
(617) 351-9222 or (800) 858-3926 (Voice)

Whenever a blind pedestrian, guided by a guide dog or carrying a raised or extended cane which is white or white tipped with red, attempts to cross a street, drivers must stop for the dog or cane user. A person who owns an animal shall restrain and control such animal on a leash when in proximity to a guide dog that is on a public or private way. Violations of this law are punishable by a criminal fine of not less than one hundred and no more than five hundred dollars.

DISABILITY COMMISSIONS

Massachusetts Disability Commissions

A city or town, which accepts the provisions of this Section, is authorized to establish a Disability Commission. Commissions work with the Office on Disability to carry out programs and activities designed to integrate people with disabilities into the community. The specific activities of a Commission depend on the needs of the disabled community in the particular city or town.

Commissions consist of five to nine members, and are appointed by the mayor or city manager in cities or by the selectmen or town manager in towns. The majority of members must be disabled, and one must be an immediate family member of a disabled person. One member of the Commission must be an elected or appointed official of the city or town. Members are initially appointed in staggered one, two and three year terms. A Commission must have at least six meetings per year, keep records of its meetings and actions, and file an annual report. Commissions generally are authorized to receive gifts and other funds, under Section 8J. For the benefit of persons with disabilities, cities and towns which have chosen to implement a Handicapped Parking Program may empower Commissions to receive and administer fines from violations of the Handicapped Parking Law, under Section 22G. The details of these funding decisions are left to the collaborative efforts of officials in the local communities. For more information, contact the Massachusetts Office on Disability.

NOTE: The fines for handicapped parking violations were substantially increased at the very end of the 2000 legislative session. See pages 9 - 13, for more information on the Plate / Placard and Parking Laws.

EDUCATION

Massachusetts Fair Educational Practices Law

Very limited protections are available in the area of education. Specifically, for “educational institutions,” it is illegal to exclude from admission any student because the student is blind or deaf or requires the use of a dog guide. Educational institutions are defined as:

any institution for instruction or training, including but not limited to secretarial schools, business schools, academies, colleges, universities, primary and secondary schools, which accepts applications for admission from the public generally and which is not in its nature distinctly private …

For “vocational schools,” disability is not mentioned as a protected classification. Vocational schools are defined as:

… any educational institution the primary purpose of which is to offer technical, agricultural, business or trade courses or courses of study leading to employment in recognized trades or occupations.

Enforcement: Complaints must be filed within six months of the alleged discrimination with Massachusetts Commission Against Discrimination:

Under this law, the Department of Public Health (DPH) is responsible for the implementation and administration of early intervention services. Early intervention services are provided to children and the families of children who are between birth and three years of age and who have identified handicapping conditions or who are at risk for developmental delays due to biological or environmental factors. Services focus on the family and include speech, occupational and physical therapy, social work, psychological, and nursing care. DPH must provide transportation whenever transportation to early intervention services is required. Under this law, DPH is the lead agency for the coordination of all governmental funding for the provision of early intervention services, both state and federal. DPH is also responsible for administration of an advisory committee, which monitors and assesses the effectiveness of the administration of early intervention services.

Enforcement:
Department of Public Health
Bureau of Family & Community Health

This federal law, modeled after the Massachusetts law Chapter 766, requires public schools to make available to all eligible children with disabilities a free and appropriate public education in the least restrictive environment appropriate to their individual needs. Any child who qualifies for special education services will receive them following an evaluation and the development of an Individualized Education Plan (IEP). A team of interested parties, which can include such people as educators, parents, physicians and advocates, develops the plan.

Enforcement: If an agreement cannot be reached concerning a student’s IEP or if the agreed upon plan is not being implemented, contact:

This state law guarantees a "free and appropriate public education in the least restrictive environment" to all school-aged children (ages 3 to 22) regardless of disability. Any child who qualifies for special education services will receive services specified in an Individualized Education Plan (IEP). A team of interested parties, including educators, parents, physicians and advocates, develops the plan.

Enforcement: If an agreement cannot be reached concerning a student’s IEP or if the agreed upon plan is not being implemented, the Department of Education should be contacted.

Legally blind adults and children are entitled to instruction in braille. School age children are entitled to receive their instruction as part of their school's special education services. Others receive training through the Massachusetts Commission for the Blind.

Massachusetts Transitional Planning Services, Turning 22 (Commonly Known as Chapter 688)

This law provides a transitional planning process for eligible people with disabilities who will lose special education services upon graduation or upon turning 22. An assigned agency develops an Individual Transitional Plan describing the services needed. The Individual Transitional Plan must be agreed upon by the Department of Education, the Executive Office of Human Services, other agencies involved, and people with disabilities or their guardians. The Bureau of Transitional Planning within the Department of Education monitors all Chapter 688 cases.

Bureau of Transitional Planning
Executive Office of Health & Human Services
One Ashburton Place, Room 1109
Boston, MA 02108
(617) 573-1600 (Voice); (617) 727-0014 (TTY)

EMPLOYMENT

Americans with Disabilities Act Title I: Employment

The law prohibits employers from firing, refusing to hire or rehire, or otherwise discriminating, against a qualified person with a disability on the basis of disability. To be “qualified” a person must be able to perform the essential functions of the job, or would be able to perform the essential functions with reasonable accommodation. “Reasonable accommodations,” such as a flexible work schedule, providing a reader or transfer to an office in an accessible location, are adjustments employers must make to enable persons with disabilities to work. These accommodations are at the employer’s expense, unless they are an “undue hardship.” For employers with 25 or more employees, the law became effective July 26, 1992; for employers with 15 or more employees it became effective July 26, 1994. Please be sure to review Massachusetts Employment Discrimination Law, which applies to employers with 6 or more employees. Also please consult Sections 501 and 504 of the Federal Rehabilitation Act and Executive Order 246.

Enforcement:
Equal Employment Opportunity Commission
JFK Building, Rm. 475, Boston, MA 02203-0506
(617) 565-3200 or (800) 669-4000 (Voice)

Federal Rehabilitation Act

Prohibits discrimination and requires adoption of affirmative action plans for hiring, placement, and advancement of individuals with disabilities within federal agencies and the U.S. Postal Service.

Enforcement: Complaints may be filed with the agency’s Equal Employment Opportunity Counselor for informal review and resolution. If the matter is not resolved satisfactorily within 21 days, a formal complaint may be filed with the agency head, the Director of Equal Employment Opportunity, an Equal Opportunity Officer, or other designated official.

Prohibits discrimination on the basis of disability and requires affirmative action in hiring persons with disabilities when the employer has a contract or subcontract with the federal government in excess of $10,000.

The 503 regulations are written and enforced by the Department of Labor. Complaints go to:

U.S. Department of Labor
Office of Federal Contract Compliance Programs
J.F.K. Building, Room 525
Boston, MA 02203 (617) 624-6780

This law prohibits any employer in Massachusetts who employs six or more people from firing, refusing to hire or rehire, or otherwise discriminating against a qualified disabled person on the basis of disability. A “qualified” disabled person must be able to perform the essential functions of the job, with or without a reasonable accommodation. “Reasonable accommodations,” such as a flexible work schedule or providing a reader, are adjustments an employer must make to enable a person with a disability to do a job. These accommodations are at the employer’s expense as long as they do not create an undue hardship.

Enforcement: The Massachusetts Commission Against Discrimination (MCAD) is the enforcement agency for the statute. A complaint must be filed at an MCAD office within 300 days of the discriminatory act:

EQUAL RIGHTS

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) provides a comprehensive national mandate for the elimination of discrimination against individuals with disabilities. The individual parts of the law are discussed in the corresponding subject matter sections of this booklet. Specifically, in the following areas:

The particular parts of the law became effective on various dates during the 1990’s.

“No otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity within the Commonwealth.”

Article 114 is broadly written. It prohibits discrimination on the basis of disability on any level within the state, not just for recipients of state or federal funds. For example, town meetings must be held in an accessible place with sign language interpreters provided if needed, and a small grocery store or a privately owned dinner theater can’t refuse to do business on the basis of a person’s disability.

Enforcement: Enforcement of this Amendment is through the courts. However, we have not seen its full impact because it hasn’t been fully tested in the courts. If you feel your rights have been violated under Article 114, contact the Massachusetts Office on Disability. If a resolution can not be reached, MOD will help you file a complaint with the Civil Rights Division of the Office of the Attorney General.

Massachusetts Equal Rights Law

Implementing Article 114 to the Massachusetts Constitution, the equal rights law guarantees persons with disabilities (with reasonable accommodation) the same rights as other persons, such as the rights to contract, to inherit, to purchase, to lease, to sell, to participate in law suits and to receive the full benefit of the law.

Enforcement: Complaints of violation of the equal rights law are made by filing a law suit in the superior court. Individuals who win their complaints are entitled to reimbursement for their reasonable attorney fees.

Massachusetts Executive Order 246

Executive Order 246 prohibits discrimination and mandates affirmative action to ensure equal opportunity for people with disabilities by the Commonwealth. The requirements of this Order apply to State executive agencies’ internal policies and practices, such as employment and the granting of licenses, and apply as well to recipients of state funding, including contract and grant recipients such as municipalities. Each agency under an executive office must create an affirmative action plan, which includes goals and methodology for the placement of people with disabilities in the state’s work force. All state employment, services and facilities should be accessible and non-discriminatory on the basis of disability. Some examples of programs and activities that must comply with EO 246 include: employment and training services, health care facilities licensed or chartered by the state, private educational institutions licensed or chartered by the state and those which receive state assistance or participate in state programs, or a person, corporation, or business which is licensed or chartered by the state.

Enforcement: Responsibilities for carrying out the requirements of Executive Order 246 are divided among different agencies: Office of Diversity and Equal Opportunity (ODEO), the Massachusetts Commission Against Discrimination (MCAD) and the Massachusetts Office on Disability (MOD).

Federal Rehabilitation Act

In 1973, Congress passed the Rehabilitation Act in a national effort to end discrimination on the basis of disability by agencies and organizations, which receive or benefit from federal financial assistance. The five major components to the Rehabilitation Act of 1973, as amended, are:

§ Section 502 – Architectural and Transportation Barriers Compliance, see pages 4-5,

Section 505 contains complaint procedures and remedies available to a complainant under 501 and 504. Among other remedies, it allows a court to award reasonable attorney's fees to a plaintiff who prevails in a discrimination case.

Massachusetts Provision of Sign Language Interpreters In Court Proceedings

When a deaf or hearing impaired person is a party or a witness, this law entitles the person to have a qualified interpreter in any court proceeding, juvenile proceeding, or proceeding before an executive or legislative board, commission, agency, or any other body of the state or its political subdivisions. This law also entitles a deaf or hearing impaired person to have an interpreter during any proceeding which follows an arrest such as notification of rights, warnings, interrogation, or taking of a statement. The interpreter must be approved by the Massachusetts Commission for the Deaf and Hard of Hearing.

For More Information: To hire an interpreter or for more information on the law contact:

Mass. Commission for the Deaf & Hard of Hearing
150 Mt. Vernon St. Suite 550, Boston, MA 02125
(617) 740-1600 (Voice), (617) 740-1700 (TTY)