Clarifies the scope of protections against discrimination on the basis of disability in services provided by public entities

Summary of specific provisions

Section one of this bill adds two new subdivisions, 35 and 36, to section 292 of the executive law. New subdi- vision 35 defines the term "public entity" to mean the state or any political subdivision including any department, agency, special purpose district, or other instrumentality of state or local government. Subdi- vision 36 would add to the term "auxiliary aids and services." Under this new section, these services would include qualified interpreters or readers for the hearing or visually impaired, acquisition or modifica- tion of equipment and other similar services and actions.

Section two of this bill would amend section 296 of the executive law to add three new subdivisions, three-c, three-d, and three-e. The new subdivision three-c would not allow public entities to deny services, programs or activities to exclude a qualified person with a disability based on such disability. Subdivision three-d would also make it an unlawful discriminatory practice for a public entity to refuse to make reasonable modifications to rules, policies or practices, remove archi- tectural, communication or transportation barriers or refuse to provide auxiliary aids and services to a person with a disability, unless they can show that to do so would pose an undue hardship. Subdivision three- -e provides that to the extent that certain public transportation enti- ties are covered by Subtitle B Title II of the Americans with Disabili- ties Act of 1990, 42 USC 12141 et seq., such entities shall not be subject to the requirements of subdivisions three-c and three-d of this section.

Justification

Beginning with the adoption of Chapter 988 of the laws of 1974, true nondiscrimination requires more than merely refraining from offensive conduct. In some instances, there are certain modest actions which must be undertaken to assure that people with disabilities have an equal opportunity to participate in certain programs, services and activities.

Title II of the ADA prohibits discrimination on the basis of disability by government entities. For several years, similar requirements have been applied to any entity, including state and local government, which receives, federal funds pursuant to the federal Rehabilitation Act of 1973. Given the scope of the 1973 mandate and the extent to which state and local governments continue to receive federal funds, the additional impact of this requirement should be minimal. Although Section 296 of the Executive Law already prohibits such discrimination by public enti- ties as employers and operators of public facilities, this measure will

clarify two key obligations of governmental entities providing benefits, programs or services.

First, it will be clear that prohibitions against discrimination extend beyond employment and use of facilities to services, programs and activ- ities. This distinction becomes critical in the case of individuals who may be afforded full access to a facility but are denied the opportunity to participate in a program offered in that facility because of their disability. Second, it will be consistent with comparable federal requirements and will clarify the obligation of the public entity to take reasonable actions to assure that the rules, policies or practices by which services, programs or activities are administered and that the existence of architectural, communication or transportation barriers or the absence of auxiliary aids and services do not prevent the partic- ipation of eligible people with disabilities in public entity services, programs and activities.

Given the minimal resources which the federal government has in the past devoted and in the future is also expected to devote to ADA enforcement the availability of state enforcement mechanisms through the Human Rights Law is essential to assure adequate protections against discrimi- nation on the basis of disability in the area of government services. Furthermore, it adds consistency for government entities that are attempting to assist people with disabilities by putting the federal requirements in state law. And finally, it secures these protections in state law, should they be challenged in federal court.

PRIOR LEGISLATIVE HISTORY:; A.6303B, 2007 and 2008 passed Assembly. Same as S.7020A, 2008 referred to investigations and governmental oper- ations. A.781 of 2009, passed Assembly. Same as S.5396 passed Senate. Vetoed (Veto No. 61 of 2009).

Fiscal implications

None.

Effective date

This act shall take effect on the one hundred twentieth day after it shall have become law.