Americans with Disabilities Act of 1990,
`the ADA Amendments Act of 2008, and
`28 CFR Part 35
`
`Title II Guidelines
`for the
`State Courts System of Florida
`
`Prepared by
`Office of the State Courts Administrator
`Supreme Court Building
`500 South Duval Street
`Tallahassee, Florida 32399-1900
`850-922-5081
`www.flcourts.org
`
`Revised: January 2009
`
`
`
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`CONTENTS
`
`Introduction ..................................................................................................................................... 5
`
`Section I: Overview ....................................................................................................................... 6
`Public Services Regulated .......................................................................................................... 6
`Who Is Protected by Title II? ...................................................................................................... 6
`Who Is Not Protected by Title II? ............................................................................................... 6
`Who Is an Individual with a “Disability?” .................................................................................. 7
`Who Is a “Qualified Individual” with a Disability? ................................................................... 7
`What Is a “Physical or Mental Impairment?” ............................................................................. 7
`
`
`Section II: General Requirements .................................................................................................. 8
`
`Section III: Program Accessibility, Modification of Policies, and Auxiliary Aids and Services .. 9
`What Accommodations Are Required by Title II? ..................................................................... 9
`Accommodations Provided by the Courts ................................................................................ 10
`How Does One Determine What Is a Reasonable Auxiliary Aid or Service? .......................... 11
`Documentation of the Need for Auxiliary Aids and Services .................................................. 11
`Accommodations in the Jury Deliberation Room ..................................................................... 12
`Notices to Persons with Disabilities ......................................................................................... 12
`Service Animals ........................................................................................................................ 13
`Facilities .................................................................................................................................... 13
`
`
`Section IV: Courtesies for Interacting with Persons Who Have Disabilities .............................. 15
`General Hints ............................................................................................................................ 15
`Reception Hints ......................................................................................................................... 15
`
`
`Section V: Enforcement and Remedies ....................................................................................... 16
`Designating a Responsible Employee ....................................................................................... 16
`Grievance Procedures ............................................................................................................... 16
`
`
`Glossary ........................................................................................................................................ 18
`"Auxiliary Aids and Services" .................................................................................................. 18
`“Effective Communication” ...................................................................................................... 18
`"Fundamental Alteration" ......................................................................................................... 18
`"Major Life Activities" ............................................................................................................. 18
`"Primary Consideration" ........................................................................................................... 19
`"Public Entity" .......................................................................................................................... 19
`"Record of a Substantially Limiting Condition" ....................................................................... 19
`"Regarded as Substantially Limited" ........................................................................................ 20
`"Substantially Limits" ............................................................................................................... 20
`"Undue Burden" ........................................................................................................................ 20
`
`
`Appendix A: Recognizing Physical or Mental Impairments ....................................................... 22
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`Examples of “Physical and Mental Impairments” .................................................................... 22
`Examples of "Substantially Limits" .......................................................................................... 22
`Examples of "Record of a Substantially Limiting Condition" .................................................. 23
`Examples of "Regarded as Substantially Limited" ................................................................... 23
`
`
`Appendix B: Mental Illness and Mental Retardation .................................................................. 24
`Persons with a Mental Illness ................................................................................................... 24
`Persons with Mental Retardation .............................................................................................. 24
`
`
`Appendix C: Examples of Auxiliary Aids and Services .............................................................. 25
`Accessible Electronic Documents ............................................................................................ 25
`Assistive Listening Devices ...................................................................................................... 25
`Audio Tapes/Talking Books ..................................................................................................... 25
`Braille Printer ............................................................................................................................ 25
`Real-Time Transcription Services / Communication Access Realtime Translation (CART) .. 25
`Infra-Red Assistive Listening Systems ..................................................................................... 25
`Optical Scanners and Optical Character Recognition (OCR) ................................................... 26
`Large Print Materials ................................................................................................................ 26
`Open and Closed Captioning .................................................................................................... 26
`Oral Interpreter ......................................................................................................................... 26
`Qualified Interpreter ................................................................................................................. 26
`TDD/TTY/Text Phone .............................................................................................................. 27
`Video Phone .............................................................................................................................. 27
`Wireless FM System ................................................................................................................. 27
`
`
`Appendix D: More Examples of Courtesies ................................................................................ 28
`Persons with Mobility Aids ...................................................................................................... 28
`Persons with Visual Disabilities ............................................................................................... 28
`Persons with Speech Impediments............................................................................................ 29
`Individuals Who Are Deaf or Hard of Hearing ........................................................................ 29
`Persons with Learning Disabilities ........................................................................................... 30
`
`
`Appendix E: Sample Grievance Procedure ................................................................................. 31
`
`Appendix F: Policy on Court Real-Time Transcription Services for Persons Who Are Deaf or
`Hard of Hearing ............................................................................................................................ 36
`
`Appendix G: Guidelines for Provision of Interpreters for Persons Who Are Deaf or Hard of
`Hearing .......................................................................................................................................... 38
`Standard .................................................................................................................................... 38
`Obtaining Interpreter Services .................................................................................................. 38
`Verification of Qualifications ................................................................................................... 39
`Florida Statutory Provisions ..................................................................................................... 40
`
`
`Appendix H: Florida State Courts System Guidelines on the Provision of Real-Time Court
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`Reporting Services for Attorneys with Disabilities ...................................................................... 42
`
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`INTRODUCTION
`
`The Americans with Disabilities Act (ADA) of 1990 was enacted to ensure that all qualified
`individuals with disabilities enjoy the same opportunities that are available to persons without
`disabilities. The ADA Amendments Act of 2008 makes important changes to the definition of
`the term "disability." United States Department of Justice is responsible for issuing ADA
`regulation for state and local governments (28 Code of Federal Regulation, Part 35). These
`federal laws and regulations are collectively referred to as “the ADA” in these guidelines.
`
`Equalizing opportunities is of paramount importance to the everyday operations of the judiciary.
` The Florida State Courts System attempts to make reasonable modifications in policies,
`practices, and procedures; furnish auxiliary aids and services; and afford program accessibility
`through the provision of accessible facilities, the relocation of services or programs, or the
`provision of services at alternative sites, as appropriate and necessary. However, the ADA does
`not require the court system to take any action that would fundamentally alter the nature of court
`programs, services, or activities, or that would impose an undue financial or administrative
`burden on the courts.
`
`The Florida State Courts System has produced these guidelines to assist judicial officers and
`courthouse personnel in understanding the public entity provisions of the ADA (Title II) and to
`assist them in ensuring that architectural or communication barriers do not obstruct any person's
`access to the courts. Included are a practical summary of Title II of the ADA and an overview of
`accessibility requirements. Additionally, this guide contains information pertaining to
`recognizing and accommodating individuals with disabilities. The State Courts System
`recommends that each district court and judicial circuit educate its employees on the
`requirements of the ADA.
`
`The Statewide ADA Coordinator for the State Courts System is Ms. Debbie Howells in the
`Office of the State Courts Administrator; telephone: (850)922-4370; e-mail: ada@flcourts.org;
`fax: (850)488-0156. Ms. Howells is available to provide technical assistance to judicial officers
`and court employees regarding court compliance with the ADA. In addition, each district and
`circuit court has designated a Court ADA Coordinator to assist judges as well as individuals with
`disabilities who need access to court services and programs. Court ADA Coordinators can be
`contacted through the marshals' offices in the appellate courts or the trial court administrators'
`offices in the circuit courts.
`
`Upon request by a qualified person with a disability, this document will be made available in
`alternate formats such as audiotape, Braille, large print, or electronic file on computer disk. To
`order this document in an alternate format, please contact the ADA Coordinator, Office of the
`State Courts Administrator, 500 S. Duval Street, Tallahassee, Florida 32399-1900, (850)922-
`4370 or ada@flcourts.org.
`
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`SECTION I: OVERVIEW
`
`Note: All terms including the designation of (gls) are defined in the Glossary
`
`The Americans with Disabilities Act of 1990 provided a national mandate to end discrimination
`against individuals with disabilities. Under Title II of the Act, no qualified individual with a
`disability shall be discriminated against, or excluded from participation in or benefits of the
`services, programs, or activities of a public entity. The Act directly affects state courts as
`providers of public programs and services.
`
`Public Services Regulated
`
`
` All activities of executive branch agencies
` All activities of the legislative branch
` All activities of the judicial branch
` All governmental activities of public entities even if performed by a contractor
` All services, programs, and activities involving general contact with the public as an
`everyday occurrence (telephone services, walk-in services, etc.)
`
`
`Who Is Protected by Title II?
`
`
` All qualified individuals with disabilities
` All qualified individuals who have a record of a disability
` All qualified individuals who are regarded as having a disability
` All qualified individuals who have an association or relationship with a disabled
`individual
`
`
`Who Is Not Protected by Title II?
`
`
`
`
`Individuals who currently use drugs illegally or abuse drugs and/or alcohol.
`
` Homosexual or bisexual individuals (homosexuality and bisexuality are not considered
`impairments.)
`
`
`
`Individuals with other sexual or behavioral anomalies including transvestism;
`transsexualism; pedophilia; voyeurism; gender identity disorders not associated with
`physical impairment; compulsive gambling, kleptomania, or pyromania; and
`psychoactive substance use disorders resulting from current illegal use of drugs.
`
`
`
`
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`Who Is an Individual with a “Disability?”
`
` A
`
` person who:
` Has a physical or mental impairment that “substantially limits”(gls) one or more “major
`life activities”(gls) of that individual
` Has a “record of a substantially limiting condition”(gls)
`
`Is “regarded as having a substantially limiting impairment”(gls)
`
`
`Who Is a “Qualified Individual” with a Disability?
`
`A person with a disability who, with or without auxiliary aids or services, meets the essential
`eligibility requirements for receiving services or participating in programs or activities provided
`by a public entity.
`
`What Is a “Physical or Mental Impairment?”
`
`Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting
`one or more of the following body systems:
`
`
` neurological
` musculoskeletal
` special sense organs
` skin
` cardiovascular
` endocrine
`
`reproductive
` digestive
` genito-urinary
`
`respiratory (including speech organs)
` hemic and lymphatic
`
` A
`
` mental impairment is any mental or psychological disorder, such as mental retardation,
`organic brain syndrome, emotional or mental illness, and specific learning disabilities. (For
`information on distinguishing mental retardation from mental illness, see Appendix B.)
`
`While it is not possible to provide an exhaustive list, examples of physical and mental
`impairments include:
`
`
` paralysis, amputation, and other mobility impairments
` blindness and low vision
` deaf, hard of hearing, and deaf-blind
` schizophrenia, bipolar disorder, and personality disorders
` mental retardation, traumatic brain injury, Alzheimer’s disease, and organic brain
`syndrome, and other cognitive impairments
` autism spectrum disorders
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` specific learning disabilities such as dyslexia (reading and related language-based
`learning disabilities); dyscalculia (mathematical disability); and dysgraphia (writing or
`fine motor skills deficit)
` cerebral palsy
` multiple sclerosis
` speech impairments
` epilepsy
` heart disease
` cancer
` diabetes
`
`
`For further examples of physical and mental impairments, see Appendix A.
`
`General Requirements
`
`The general prohibitions against discrimination in the federal regulations indicate that, among
`other things, a public entity may not:
`
`
` Deny a qualified individual with a disability the opportunity to participate in or benefit
`from the service;
`
` Afford a qualified individual with a disability a service or an opportunity to participate
`that is not equal to that afforded others;
`
` Provide a qualified individual with a disability with a service that is not as effective in
`affording equal opportunity to obtain the same result, to gain the same benefit, or reach
`the same level of achievement as that provided to others;
`
` Provide different or separate services to individual with disabilities or any class of
`individuals with disabilities than is provided to others (except under specific
`circumstances); or
`
` Otherwise limit a qualified individual with a disability in the enjoyment of any right,
`privilege, advantage, or opportunity enjoyed by others receiving the service.
`
`
`When necessary to provide access for a qualified individual with a disability, a Title II entity is
`required to 1) Make reasonable modifications to policies and practices; 2) Remove architectural,
`communication, or transportation barriers; and 3) Provide “auxiliary aids and services”(gls). A
`public entity should give “primary consideration”(gls) to the auxiliary aid or service requested
`by the individual with the disability.
`
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`SECTION II: PROGRAM ACCESSIBILITY, MODIFICATION OF POLICIES, AND
`AUXILIARY AIDS AND SERVICES
`
`Note: All terms including the designation of (gls) are defined in the Glossary
`
`As required by the ADA, the determination of whether an individual has a disability and the
`accommodation appropriate to a particular situation is an individualized inquiry and each
`decision is therefore made on a case-by-case basis. Accommodations that are granted by the
`state courts are made at no cost to qualified individuals with disabilities. Examples of Title II
`accommodations include:
`
`
` Architecturally renovating facilities to make them readily accessible to and usable by an
`individual with disabilities
` Relocating a service to enable a person with a disability to participate
` Obtaining or modifying equipment or devices (including videophones or TDDs, assistive
`listening systems, videotext displays, or publishing materials in Braille and large print)
` Providing qualified readers and interpreters
` Providing reserved parking for a person with a mobility impairment
` Allowing a person with a disability to provide equipment or devices that the public entity
`is not required to provide
`
`
`What Accommodations Are Required by Title II?
`
`When necessary to provide access for a qualified individual with a disability, a Title II entity is
`required to 1) Make reasonable modifications to policies and practices; 2) Remove architectural,
`communication, or transportation barriers; and 3) Provide auxiliary aids and services.
`
`The Florida State Courts System must make reasonable modifications to policies and programs
`to afford qualified individuals who have disabilities with an equal opportunity to enjoy court
`programs, services, and activities. For example, service animals are allowed in court facilities,
`even though pets are prohibited.
`
`There are many ways to make a program, service, or activity accessible other than through
`architectural modifications. If physical access to a court facility is not feasible administratively
`or financially, the entity may comply with the ADA by making its services available in another
`fashion. Program access allows the court to move the program to an accessible location, or use
`some way other than making all architectural changes to make the program, service, or activity
`readily accessible to and usable by individuals with disabilities.
`
` A
`
` “public entity”(gls) is required to provide necessary “auxiliary aids and services”(gls) for
`qualified individuals with disabilities to ensure “effective communication”(gls) and participation
`in its services, programs, and activities. The person with a disability will generally request an
`auxiliary aid or service if needed. All requests should be documented and maintained in a
`separate file by the designated ADA coordinator. Examples of auxiliary aids and services are
`included in Appendix C.
`
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`There may be a few situations in which a court will not be required to provide a requested
`accommodation. The ADA does not require the court system to take any action that would
`fundamentally alter the nature of court programs, services, or activities, or that would impose an
`undue financial or administrative burden. If a judicial officer or court personnel believe the
`requested accommodation would result in a “fundamental alteration”(gls) in the nature of the
`program or service, or that an “undue burden”(gls) would result, the ADA coordinator should be
`notified immediately.
`
`Accommodations Provided by the Courts
`
`The Florida State Courts System will generally, upon request, attempt to provide appropriate
`aids and services to afford “effective communication”(gls) for qualified persons with disabilities
`to participate equally in court programs, services, and activities. The Florida State Courts
`System cannot place a surcharge on a particular individual with a disability or any group of
`individuals with disabilities to cover the cost of providing auxiliary aids and services or
`reasonable modifications of policies.
`
`Examples of auxiliary aids or services that the State Courts System may provide for qualified
`individuals with disabilities include:
`
`
` Assistive listening devices
` Qualified sign language interpreters and oral interpreters
` Real-time transcription services
` Accessible formats such as large print, Braille, electronic document on diskette, or audio
`tapes
` Qualified readers
`
`
`Examples of aids or services the State Courts System is not required to provide under Title II of
`the ADA include:
`
`
` Transportation to the courthouse
` Legal counsel or advice
` Personal devices such as wheelchairs, hearing aids, or prescription eyeglasses
` Personal services such as medical or attendant care
` Readers for personal use or study
`
`
`Additionally, courts cannot administratively grant, as an ADA accommodation, requests that
`impact court procedures within a specific case. Requests for an extension of time, a change of
`venue, or participation in court proceedings by telephone or videoconferencing must be
`submitted by written motion to the presiding judge as part of the case. The judge may consider
`an individual’s disability, along with other relevant factors, in granting or denying the motion.
`
`Furthermore, the court cannot exceed the law in granting a request for an accommodation. For
`example, the court cannot extend the statute of limitations for filing an action because someone
`claims that he or she could not make it to the court on time due to a disability, nor can the court
`modify the terms of agreements among parties as an ADA accommodation.
`
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`How Does One Determine What Is a Reasonable Auxiliary Aid or Service?
`
`When determining whether requested auxiliary aids and services are reasonable, let common
`sense be your guide. Determining the appropriate auxiliary aid or service frequently involves an
`interactive process:
`
`
` Always consult the person with the disability as the first step in evaluating the need for
`auxiliary aids and services.
`
` Work with the person with a disability to identify appropriate auxiliary aids and services
`and in considering alternatives. Often, by inquiring about what auxiliary aid or service is
`most effective for that person, one may learn a simple, inexpensive method of
`accommodation.
`
` Consider the preference of the individual with a disability and select the auxiliary aid or
`service that best serves the needs of the individual and fulfills the purpose of the service
`or program.
`
` Ensure that equal benefit or enjoyment of the program can be obtained when the auxiliary
`aid or service is provided.
`
` Ensure that “effective communication”(gls) occurs.
`
` Realize that individuals may decline an accommodation and choose to participate in the
`court activity in the same manner as the general public.
`
`
`If you have thoughtfully considered and discussed all the options, chances are you will come up
`with an appropriate solution. Nevertheless, when a request for an auxiliary aid or service is
`made, you should notify the ADA coordinator of your court. When necessary, the ADA
`coordinator will consult resource materials, talk to disability experts, and prepare a
`recommendation for approval by the presiding judge.
`
`Documentation of the Need for Auxiliary Aids and Services
`
`If an individual has a disability that is not obvious or when it is not readily apparent how a
`requested accommodation relates to an individual’s impairment, it may be necessary for the
`court to require the individual to provide documentation from a qualified health care provider in
`order for the court to fully and fairly evaluate the accommodations request. Requests for
`documentation shall be limited to documentation that (a) establishes the existence of a disability;
`(b) identifies the individual’s functional limitations; and (c) describes how the requested
`accommodation addresses those limitations. Any cost to obtain such documentation is the
`obligation of the person requesting the accommodation. The court should not make inquiries
`into or ask for documentation of a person’s physical or mental condition that is unrelated to the
`impaired function for which the individual seeks accommodation.
`
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`Copies of requests for auxiliary aids and services, medical documentation, approvals or
`disapprovals, and a description of any auxiliary aids and services provided should be given to the
`ADA coordinator of your court.
`
`Accommodations in the Jury Deliberation Room
`
`If accommodations are required for a juror with a disability, a sign language interpreter, real-
`time transcriptionist, or personal attendant should be allowed into the jury room during
`deliberations. The interpreter, transcriptionist, or attendant shall not counsel, advise, attempt to
`explain terms, or interject personal opinion into the jury deliberations.
`
`The role of a real-time transcriptionist, when in the jury room, is not as a reporter of the official
`record; therefore, the real-time transcription service of jury deliberations must be deleted
`immediately upon the conclusion of jury deliberation. Furthermore, the reporter shall not read
`back the real-time transcription service from the proceeding or jury deliberations without express
`judicial approval or authorization.
`
`The presiding judge has the discretion to administer an oath of non-involvement, including
`language stating that the interpreter, transcriptionist, or attendant will not interfere with the
`deliberations of the jury or reveal the confidences of the jury. See U.S. v. Dempsey, 830 F.2d
`1084, 1090 (10th Cir. 1987); Guzman, 76 N.Y. 2d at 6-7 (clarifying that since a “signor” is a
`neutral figure, associated only with the fellow juror, her presence should not have an adverse
`impact on jurors). The judge, before the verdict is announced, may inquire whether the
`interpreter, transcriptionist, or attendant abided by his or her oath to act strictly as an assistant to
`the juror with a disability. The judge may also question the jurors to the same effect. Dempsey,
`supra.
`
`Notices to Persons with Disabilities
`
`Rule 2.540, Florida Rules of Judicial Administration, requires that all notices of court
`proceedings held in a public facility and all process compelling appearance at such proceedings
`include the following statement:
`
`
`If you are a person with a disability who needs any accommodation in order to
`participate in this proceeding, you are entitled, at no cost to you, to the provision
`of certain assistance. Please contact [identify applicable court personnel by name,
`address, and telephone number] within 2 working days of your receipt of this
`[describe notice]; if you are hearing or voice impaired, call 711.
`
`
`It is also recommended that notice of the availability of accommodations be provided in
`accessible formats and modalities at the following locations, as appropriate and applicable to an
`individual court:
`
`
` Posted at the information desk
`
`Incorporated into jury-orientation videos and materials
`
`Included in any public service announcements about the courts
`
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` Published on trial and appellate court websites
` Posted in court offices
`
`Included in court handbooks, publications, activity schedules, and meeting notices
` Announced at court events
`
`
`Service Animals
`
` A
`
` service animal is an animal that is trained to perform tasks for an individual with a disability.
`The tasks may include, but are not limited to, guiding a person who is visually impaired or blind,
`alerting a person who is deaf or hard of hearing, pulling a wheelchair, assisting with mobility or
`balance, alerting and protecting a person who is having a seizure, retrieving objects, or
`performing other special tasks. A service animal is a working animal, not a pet. An emotional
`support animal is not a service animal.
`
`The courts will allow people with disabilities to bring their service animals into all areas of the
`court facility where members of the public are normally allowed to go. Court personnel may ask
`if an animal is a service animal or ask what tasks the animal has been trained to perform, but
`cannot require special ID cards for the animal.
`
` A
`
` person with a disability cannot be asked to remove the service animal from the court facility
`unless: (1) the animal is out of control and the owner does not take effective action to control it
`(for example, a dog that barks repeatedly