Enhancing Coordination and Integration to Promote Greater Accessibility at State Facilities and to State Programs, Services and Activities

Attachment to Administrative Bulletin #19

I.      Purpose

The purpose of this Administrative Bulletin is to outline the policy and programmatic framework to promote greater access for citizens with disabilities to the state’s programs and services, as well as to achieve compliance with Title II of the American with Disabilities Act and related Massachusetts and federal laws.[1]  This Administrative Bulletin shall apply to each agency of the executive branch and to each state agency that receives capital funding pursuant to the annual capital budget.

II.     Policy

Consistent with the requirements of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134 as amended and Executive Order 526, this Administrative Bulletin outlines and establishes the policy and programmatic framework through which the Commonwealth will proactively act to remove physical and programmatic barriers that limit equal participation in state programs, activities and services.

Title II of the ADA, among other things, explicitly requires each public entity to: (1) conduct a Self Evaluation by examining administrative policies, operational procedures, and communication systems for possible unintentional exclusion identifies architectural barriers that require removal to achieve program access, and (2) prepare a Transition plan that refines the strategy for barrier removal, establishes a schedule for the actual removal and interim procedures to ensure access, and identifies a person responsible for ensuring completion of the work.

Executive Order 526 establishes a policy of non-discrimination and equal opportunity in the delivery of state programs, services and activities.

To ensure non-discrimination in its facilities going forward, all new building projects undertaken by the Commonwealth shall incorporate and exemplify the principles of “universal design” or “design for all”, defined in part as the design of environments to be useable by all people, regardless of disability, to the greatest extent possible, without the need for adaptation or specialized design.

III.    Definitions

As used in this Administrative Bulletin, the following words shall, unless the context requires otherwise, have the following meanings:

“ADA Compliance Assessment”, shall mean the process, as determined by the Universal Access Committee in consultation with the Executive Department entities identified in this document, by which an agency assesses its current state of ADA compliance;[2]

"Agency'', shall include (1) all executive offices, boards, commissions, agencies, departments, divisions, councils, bureaus, offices and secretariats, now existing and hereafter established, and (2) a board, bureau, department, division, section, or commission of the commonwealth that submits a capital facility budget request and receives funding for capital facility projects pursuant to chapter 29 of the Massachusetts General Laws;

“Self-evaluation”, pursuant to Title II of the ADA, is an assessment of an agency’s current policies and practices for the purpose of identifying and correcting policies and practices that are inconsistent with ADA Title II requirements.  The self-evaluation shall include the items identified in DOJ ADA Title II Technical Assistance Manual §II-8.2000, attached as Appendix A.

“Transition plan”, pursuant to Title II of the Americans with Disabilities Act, shall mean a document that addresses removal of the specific physical barriers identified in the self-evaluation and related items, identified in the DOJ ADA Title II Technical Assistance Manual §II-8.3000, attached as Appendix B.

IV.   Universal Access Committee

There is hereby established a Universal Access Committee (“Committee”), which shall be within the Executive Office for Administration and Finance and which shall serve as an extension of the Office of Access and Opportunity.

The Committee shall consist of not more than twenty-one (21) members: the Assistant Secretary for Access and Opportunity, who shall chair the Committee; the Assistant Secretary for Capital Finance and Intergovernmental Affairs or his designee; two representatives appointed by the Commissioner of the Division of Capital Asset Management (“Division”); the Director of the Massachusetts Office on Disability (“MOD”) or her designee; the Chief Information Officer of the Commonwealth or his designee; the Chief Human Resources Officer or his designee; the Director of the Office of Diversity and Equal Opportunity; one representative of the Civil Rights Division of the Office of the Attorney General; the secretary of each executive office of the executive branch, including the Massachusetts Department of Transportation created pursuant to chapter 6C of the Massachusetts General Laws or her/his designee; and, up to four other individuals to be appointed by the Assistant Secretary for Access and Opportunity with the approval of the Secretary for Administration and Finance.

The Committee shall undertake the following:

1. Make recommendations to the Assistant Secretary for Access and Opportunity, the Assistant Secretary for Capital and Intergovernmental Relations and the Secretary for Administration and Finance, as is appropriate, for further policy development consistent with the purpose and policy of Executive Order 526 and this Administrative Bulletin;
2. Make an annual recommendation to the Secretary for Administration and Finance as to the amount of funds that should be set aside to fund agency self-evaluations, agency transition plans, agency physical barrier removal, and other actions necessary to facilitate agency compliance with the Americans with Disabilities Act and the purpose and policy of this Administrative Bulletin;
3. Define, oversee and coordinate implementation of the actions necessary to achieve the purpose and policy of this Administrative Bulletin, including but not limited to: (1) defining a schedule for the delivery of trainings; (2) defining a schedule for the development of agency ADA compliance assessments, self-evaluations and transition plans; (3) overseeing the development of agency ADA compliance assessments, self-evaluations and transition plans; and, (4) coordinating efforts among the Committee, the Massachusetts Office on Disability (“MOD”) and the Division of Capital Asset Management (“Division”);
4. Define a process for the review of capital projects undertaken by the Division and other state agencies that receive funding via the Commonwealth’s Capital Plan;
5. Develop design guidelines, as necessary, to ensure that all projects undertaken by the Commonwealth meet or exceed Massachusetts Architectural Access Board Regulations[3] and advance the recognized concepts of universal design in order to achieve the maximum feasible level of accessibility.
6. Ensure coordination between accessibility, physical barrier removal improvements, new construction, and the capital budgeting process;
7. Share best practices across the executive branch and among agencies that receive capital funding; and,
8. Establish a means for the provision of technical assistance to and among state agencies.

The Committee shall commence operation not later than thirty days after the approval date of this Administrative Bulletin.

V.    ADA Compliance Responsibilities of State Agencies

Each agency shall have the following role and responsibilities:

1. Each agency shall appoint an ADA/504 Coordinator who shall report directly to the agency head, who shall function as the point person for an agency in its efforts to comply with the Americans with Disabilities Act, as well as related Massachusetts and federal laws, and who shall work with MOD concerning issues involving the civil rights of persons with disabilities.
2. Each agency shall review its compliance with the Americans with Disability Act and related laws, and shall, pursuant to a time frame established by the Universal Access Committee, complete an ADA compliance assessment, a self-evaluation and a transition plan.
3. As part of each agency’s self-evaluation, it should analyze whether its policies and practices adversely affect the full participation of individuals with disabilities in its programs, activities, and services.  Further guidance, consistent with Title II ADA requirements and related laws, will be issued by the agencies with the power to issue the particular subject matter standards or guidelines.  Those agencies will do so with guidance from the Universal Access Committee.
4. Each agency shall take all reasonable steps to commit the requisite personnel and resources to achieve compliance.
5. Each agency shall establish a process for and ensure consultation with individuals with disabilities and/or organizations that represent individuals with disabilities in the development of its self-evaluation and transition plan.

VI.   Massachusetts Office on Disability Responsibilities

Pursuant to its institutional role and responsibilities, as outlined in Executive Order 526 and G.L. c.6, §185, et seq., and the purpose and policy of this Administrative Bulletin, the Massachusetts Office on Disability (“MOD”), based on a schedule developed in consultation with the Universal Access Committee, shall undertake the following:

1. Conduct additional ADA trainings at several levels of government: (1) Senior managers, (2) ADA Coordinators; and (3) Facility managers; provided that MOD will work with the Division of Capital Asset Management in the development and delivery of such trainings to facility managers.
2. In consultation with the Human Resources Division, develop a model job description for ADA/504 Coordinators and work with the Universal Access Committee, Agencies and others to develop a system of professional development trainings that will facilitate the attainment of the education and skills on the part of ADA/504 Coordinators.  Additionally, MOD and the Universal Access Committee will work with the Human Resources Division to develop and/or amend the Form 30 such that any person appointed to the position of ADA/504 Coordinator will possess the personal education, abilities, skills and background to hold the position of ADA/504 Coordinator.
3. Such other activities as necessary and consistent with the purposes of the Administrative Bulletin and the standards for Self-Evaluations and Transition Plans created by the US Department of Justice, including at least:
4. review of the Self-Evaluations and Transition Plans,
5. development of policy and procedures,
6. coordination of related activities with other ANF oversight agencies, and
7. annual review of the designation and status of each agency ADA/504 Coordinators.

MOD will provide a quarterly report to the Universal Access Committee on each of the foregoing activities.

VII.  Division of Capital Asset Management Responsibilities

Pursuant to G.L. c. 7, §39B and its institutional role and the purpose and policy of this Administrative Bulletin, the Division shall undertake the following:

1. Investigate the feasibility of developing and implementing a designer consultant certification program;
2. Make a recommendation to the Assistant Secretary for Access and Opportunity on the best method to implement said designer consultant certification program; provided that its recommendation shall be submitted to the Assistant Secretary for Access and Opportunity not later than December 1, 2011;
3. Continue to review Division-sponsored projects at different stages of design and provide technical assistance to staff and design consultants;
4. Pursue the possibility of using available software to ensure comprehensive compliance of design contract documents with the ADA; and,
5. Conduct outreach and training to agencies through which an emphasis on the importance of fixing barriers through maintenance funds and the importance of maintaining accessibility through standard operating procedures will be stressed.

The Division will provide a quarterly report to the Universal Access Committee on each of the foregoing activities.

VIII.    Coordination with Public Transportation Agencies

The Universal Access Committee, to the maximum extent possible, shall coordinate its efforts and activities pursuant to the purpose and policy of this Administrative Bulletin with the specific compliance efforts and activities of the Massachusetts Department of Transportation (“Department”) imposed by 42 U.S.C. §§12141-12150 and 42 U.S.C. §§12161-12165. Said coordination may include, but need not be limited to, establishing a separate schedule for the development of agency ADA compliance assessments, self-evaluations and transition plans and any other activities and/or efforts undertaken to achieve compliance with the ADA.

IX.   Additional Agency Responsibilities

Transparency:

1. Each agency will include on its website a statement of non-discrimination and links to the location of accessible buildings and facilities, directions for how to request accommodations, ADA/504 Coordinator contact information, and the agency’s ADA grievance policy;
2. Each agency owned building will comply with the requirement for a statement of rights pursuant to the Americans with Disabilities Act and the provision of ADA coordinator contact information at all public entrances.

Accountability:

1. Each agency, upon completion of its agency self-evaluation and transition plan, when submitting its long-range capital facility plans pursuant to section 7A of chapter 29 of the Massachusetts General Laws shall include specific strategies for bringing its programs and facilities into compliance with the Americans with Disabilities Act (ADA) and related state and federal laws addressing access for people with disabilities to state facilities, communications, programs, activities and services; provided that any requests for funding submitted as part of such long-range capital facility plan shall identify how the projects contained on said long-range capital facility plan contributes to the agency’s meeting its ADA related obligations.
2. Each agency, upon completion of its transition plan, shall input those physical barriers that can be addressed as access improvements, pursuant to the standard operating procedures, into the DCAM Capital Asset Management Information System (“CAMIS”).  Pursuant to policy direction developed by DCAM in consultation with the Universal Access Committee, DCAM shall determine how and under what conditions such access improvements are eligible for consideration as requests to transfer capital funds.
3. Secretariat ADA coordinators shall for each agency under their secretariat’s charge, electronically submit a copy to MOD and DCAM and maintain a copy of the self-evaluation, agency transition plan, and progress reports relative to both.
4. Secretariat ADA coordinators shall meet bi-annually with department ADA coordinators to review ADA compliance progress, challenges, and share successes.
5. The MOD, based on a schedule of activity to be determined in consultation with the Universal Access Committee, shall meet periodically with executive branch agency ADA/504 Coordinators to assess progress in meeting the purpose and policy of this Administrative Bulletin.  MOD shall report to the Universal Access Committee on successful activity as well as obstacles to ADA compliance.
6. MOD and the Division will report to the Universal Access Committee on activity and progress related to ADA trainings, meetings with ADA/504 coordinators, meetings with agency facility managers, and any other matter related to implementation of this Administrative Bulletin.
7. MOD and the Division will review agency self-evaluation and transition plans for ADA compliance and shall report on agency progress to the Universal Access Committee.  Where deficiencies are identified in agency submissions, MOD and the Division may require further work by an agency to ensure an acceptable level of completeness, functionality and accuracy.

X.    Annual Report

The Universal Access Committee shall file an annual report on its activities with the Secretary for Administration and Finance.  Said annual report shall be filed within 45 days of the end of each fiscal year commencing with end of fiscal year 2012.  The report shall include, but not be limited to:

1. A summary of actions taken by the Committee during the preceding fiscal year;
2. Documentation of recommendations for enhancement to or improvement of the capital planning and budgeting process for the purpose of achieving greater accessibility and the actions taken and/or planned to address those recommendations;
3. Documentation of recommendations for other policy initiatives consistent with achieving greater accessibility and the actions taken and/or planned to address those recommendations; and,
4. Address any other matters consistent with the purpose and policy of this Administrative Bulletin.

Appendix A

Excerpts from DOJ ADA Title II Technical Assistance Manual

II-8.2000 Self-evaluation. All public entities subject to title II of the ADA must complete a self-evaluation by January 26, 1993 (one year from the effective date of the Department's regulation).

Does the fact that a public entity has not completed its self-evaluation until January 26, 1993, excuse interim compliance? No. A public entity is required to comply with the requirements of title II on January 26, 1992, whether or not it has completed its self- evaluation.

Which public entities must retain a copy of the self-evaluation? A public entity that employs 50 or more employees must retain its self-evaluation for three years. Other public entities are not required to retain their self-evaluations but are encouraged to do so because these documents evidence a public entity's good faith efforts to comply with title II's requirements.

What if a public entity already did a self-evaluation as part of its obligations under section 504 of the Rehabilitation Act of 1973? The title II self-evaluation requirement applies only to those policies and practices that previously had not been included in a self-evaluation required by section 504. Because most section 504 self-evaluations were done many years ago, however, the Department expects that many public entities will re- examine all their policies and practices. Programs and functions may have changed significantly since the section 504 self-evaluation was completed. Actions that were taken to comply with section 504 may not have been implemented fully or may no longer be effective. In addition, section 504's coverage has been changed by statutory amendment, particularly the Civil Rights Restoration Act of 1987, which expanded the definition of a covered "program or activity." Therefore, public entities should ensure that all programs, activities, and services are examined fully, except where there is evidence that all policies were previously scrutinized under section 504.

What should a self-evaluation contain? A self-evaluation is a public entity's assessment of its current policies and practices. The self-evaluation identifies and corrects those policies and practices that are inconsistent with title II's requirements. As part of the self-evaluation, a public entity should:

1. Identify all of the public entity's programs, activities, and services; and
2. Review all the policies and practices that govern the administration of the public entity's programs, activities, and services.

Normally, a public entity's policies and practices are reflected in its laws, ordinances, regulations, administrative manuals or guides, policy directives, and memoranda. Other practices, however, may not be recorded and may be based on local custom.

Once a public entity has identified its policies and practices, it should analyze whether these policies and practices adversely affect the full participation of individuals with disabilities in its programs, activities, and services. In this regard, a public entity should be mindful that although its policies and practices may appear harmless, they may result in denying individuals with disabilities the full participation of its programs, activities, or services. Areas that need careful examination include the following:

1. A public entity must examine each program to determine whether any physical barriers to access exist. It should identify steps that need to be taken to enable these programs to be made accessible when viewed in their entirety. If structural changes are necessary, they should be included in the transition plan (see II-8.3000). [Emphasis added.]
2. A public entity must review its policies and practices to determine whether any exclude or limit the participation of individuals with disabilities in its programs, activities, or services. Such policies or practices must be modified, unless they are necessary for the operation or provision of the program, service, or activity. The self- evaluation should identify policy modifications to be implemented and include complete justifications for any exclusionary or limiting policies or practices that will not be modified.
3. A public entity should review its policies to ensure that it communicates with applicants, participants, and members of the public with disabilities in a manner that is as effective as its communications with others. If a public entity communicates with applicants and beneficiaries by telephone, it should ensure that TDD's or equally effective telecommunication systems are used to communicate with individuals with impaired hearing or speech. Finally, if a public entity provides telephone emergency services, it should review its policies to ensure direct access to individuals who use TDD's and computer modems.
4. A public entity should review its policies to ensure that they include provisions for readers for individuals with visual impairments; interpreters or other alternative communication measures, as appropriate, for individuals with hearing impairments; and amanuenses for individuals with manual impairments. A method for securing these services should be developed, including guidance on when and where these services will be provided. Where equipment is used as part of a public entity's program, activity, or service, an assessment should be made to ensure that the equipment is usable by individuals with disabilities, particularly individuals with hearing, visual, and manual impairments. In addition, a public entity should have policies that ensure that its equipment is maintained in operable working order.
5. A review should be made of the procedures to evacuate individuals with disabilities during an emergency. This may require the installation of visual and audible warning signals and special procedures for assisting individuals with disabilities from a facility during an emergency.
6. A review should be conducted of a public entity's written and audio-visual materials to ensure that individuals with disabilities are not portrayed in an offensive or demeaning manner.
7. If a public entity operates historic preservation programs, it should review its policies to ensure that it gives priority to methods that provide physical access to individuals with disabilities.
8. A public entity should review its policies to ensure that its decisions concerning a fundamental alteration in the nature of a program, activity, or service, or a decision that an undue financial and administrative burden will be imposed by title II, are made properly and expeditiously.
9. A public entity should review its policies and procedures to ensure that individuals with mobility impairments are provided access to public meetings.
10. A public entity should review its employment practices to ensure that they comply with other applicable nondiscrimination requirements, including section 504 of the Rehabilitation Act and the ADA regulation issued by the Equal Employment Opportunity Commission.
11. A public entity should review its building and construction policies to ensure that the construction of each new facility or part of a facility, or the alteration of existing facilities after January 26, 1992, conforms to the standards designated under the title II regulation.
12. A review should be made to ascertain whether measures have been taken to ensure that employees of a public entity are familiar with the policies and practices for the full participation of individuals with disabilities. If appropriate, training should be provided to employees.
13. If a public entity limits or denies participation in its programs, activities, or services based on drug usage, it should make sure that such policies do not discriminate against former drug users, as opposed to individuals who are currently engaged in illegal use of drugs.

If a public entity identifies policies and practices that deny or limit the participation of individuals with disabilities in its programs, activities, and services, when should it make changes? Once a public entity has identified policies and practices that deny or limit the participation of individuals with disabilities in its programs, activities, and services, it should take immediate remedial action to eliminate the impediments to full and equivalent participation. Structural modifications that are required for program accessibility should be made as expeditiously as possible but no later than January 26, 1995.

Is there a requirement for public hearings on a public entity's self-evaluation? No, but public entities are required to accept comments from the public on the self-evaluation and are strongly encouraged to consult with individuals with disabilities and organizations that represent them to assist in the self-evaluation process. Many individuals with disabilities have unique perspectives on a public entity's programs, activities, and services. For example, individuals with mobility impairments can readily identify barriers preventing their full enjoyment of the public entity's programs, activities, and services. Similarly, individuals with hearing impairments can identify the communication barriers that hamper participation in a public entity's programs, activities, and services. 

Appendix B

Excerpts from DOJ ADA Title II Technical Assistance Manual

II-8.3000 Transition plan. Where structural modifications are required to achieve program accessibility, a public entity with 50 or more employees must do a transition plan by July 26, 1992, that provides for the removal of these barriers. Any structural modifications must be completed as expeditiously as possible, but, in any event, by January 26, 1995.

What if a public entity has already done a transition plan under section 504 of the Rehabilitation Act of 1973? If a public entity previously completed a section 504 transition plan, then, at a minimum, a title II transition plan must cover those barriers to accessibility that were not addressed by its prior transition plan. Although not required, it may be simpler to include all of a public entity's operations in its transition plan rather than identifying and excluding those barriers that were addressed in its previous plan.

Must the transition plan be made available to the public? If a public entity has 50 or more employees, a copy of the transition plan must be made available for public inspection.

What are the elements of an acceptable transition plan? A transition plan should contain at a minimum --

1. A list of the physical barriers in a public entity's facilities that limit the accessibility of its programs, activities, or services to individuals with disabilities;
2. A detailed outline of the methods to be utilized to remove these barriers and make the facilities accessible;
3. The schedule for taking the necessary steps to achieve compliance with title II. If the time period for achieving compliance is longer than one year, the plan should identify the interim steps that will be taken during each year of the transition period; and,
4. The name of the official responsible for the plan's implementation.

[1] The compliance review and processes contemplated by this Bulletin shall also include review of compliance with the provisions of the U.S. Rehabilitation Act, 42 U.S.C. §794, et seq.; the Telecommunications Act, 47 U.S.C. § 225; the Technology Act, 29 U.S.C. §794d, et seq.; Massachusetts Amendment Article CXIV, and its implementing statute G.L. c. 93, §103, the Architectural Access Board Act, G.L c. 22 §13A, and its implementing regulations 521 C.M.R.; as well as the Anti-Discriminations Statutes, G.L. c. 151B, c. 272 §§92, 98 and 98A, and their implementing regulations 804 C.M.R.; and Executive Order 526.

[2] Id.

[3] 521 C.M.R.