# 156

DJ# 204-012-00058 December 19, 1994

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Ms. Adell Betts

Director
Office of Equal Rights
Federal Emergency Management
Agency
Washington, D.C. 20472

Dear Ms. Betts:

This letter is in response to your letter requesting an

advisory opinion on various issues dealing with the impact of the
Americans with Disabilities Act of 1990 (ADA) on the provision of
shelter and mass care during and after a disaster.

In your letter, you describe American Red Cross (ARC)

policies that may limit the ability of individuals with
disabilities to take advantage of the disaster relief services
provided by the ARC to members of the general public. Your
concern arises out of the possible relationships that may arise
between the ARC and local Emergency Management Agencies, which
receive Federal financial assistance through your agency, the
Federal Emergency Management Agency (FEMA). Specifically, you
ask the following questions:

1. Is the current ARC policy a violation of Section 504 [of the

Rehabilitation Act of 1973, as amended] or of Titles II or III?
If so, why? If not, why not?

2. What sort of physical or other type of access is legally

required in a mass care shelter?
3. Is an Emergency Management Agency in violation of these
statutes or implementing regulations by participating in any
portion of shelter operations?

Given the number of interrelationships that may occur among

these entities, some of which you describe in your letter, and
the fact that your letter does not fully describe the legal
responsibilities that apply to each, we are unable to provide a
comprehensive answer. We have, therefore, tried to set forth the
applicable general requirements.

Emergency shelters set up by the American Red Cross are

clearly places of public accommodation subject to Title III of
the ADA, which prohibits discrimination against individuals on
the basis of disability by any private entity (whether or not
established for profit) that owns, leases (or leases to), or
operates a place of public accommodation. See 36.201 of the
enclosed Title III regulation. To be considered a "place of
public accommodation" under Title III of the ADA, a facility must
be operated by a private entity, its operations must affect
interstate commerce, and it must fall within one of the 12
categories listed in 36.104 of the regulation. Each category
includes representative examples of covered facilities.
However, the examples included are meant to be illustrative, not
exhaustive. Thus, a facility does not have to be specifically
listed in order to be covered.

Shelters operated by the ARC would be considered "social

service center establishment[s]," a category that includes senior
citizen centers and homeless shelters. Such shelters may also be
considered "service establishment[s]," a category that includes
the professional offices of health care providers and hospitals.

As a public accommodation, that is, as an entity that

operates a place of public accommodation, the ARC is fully
subject to the requirements of Title III. It cannot discriminate
against individuals with disabilities on the basis of disability
in the full and equal enjoyment of the services it provides. See
​36.201(a) of the Title III regulation. The ARC is free to
define the type of services it will provide during emergencies.
Thus, if the ARC defines its mission as providing shelter, basic
nutrition, and basic medical care during times of emergency, this
policy does not violate the ADA. It would, however, violate the
ADA if the ARC refused to provide these same services to
individuals with disabilities, such as individuals who use
wheelchairs or persons who are blind or deaf.

The ARC must also make reasonable modifications to its

policies, practices, or procedures if those modifications are
necessary to make its services available to persons with
disabilities. See 36.302(a) of the Title III regulation.
Modifications are not required, however, when the ARC can
demonstrate that making such modifications would fundamentally
alter the services provided. In practice this could mean that
the ARC may be required to perform some additional services for
individuals with disabilities. It is would not, however, be
required to convert its shelters into comprehensive, state of the
art, medical facilities. From the ARC's Numbered Notice 5, which
you have enclosed with your letter, and from your description of
individuals turned away from shelters, it appears that the ARC is
failing to distinguish between two classes of individuals, those
with disabilities who are medically stable (for example,
individuals who use mobility aids, such as wheelchairs, as a
result of a past injury or illness) and individuals who may or
may not have disabilities, but who are acutely ill. Barring
medically stable individuals with disabilities from entrance to
ARC shelters solely on the basis of their disability would, in
most cases, violate Title III of the ADA. Failing to make
reasonable modifications to shelter policies, practices, and
procedures to accommodate such individuals also violates the ADA,
unless the American Red Cross can demonstrate that making such
modifications would result in a fundamental alteration to the
service provided.

As a practical matter, this means that the ARC should not

assume that all people with visible disabilities are ill and
require hospitalization or specialized medical care. Shelters
should, as a matter of course, be prepared to accept medically
stable individuals with disabilities. This group may include,
but is not limited to, people with mobility impairments, blind
individuals (and their service animals), people who are deaf,
individuals who have cerebral palsy, and people with muscular
dystrophy and other disorders that may be degenerative, but who
are not acutely ill. The ARC should be prepared to make
reasonable modifications to its policies in order to accommodate
such individuals. For example, shelter staff should be prepared
to assist paralyzed individuals in transferring to bed and with
basic health care procedures.

With respect to individuals who are acutely ill, as noted

above, the ARC is not required to provide comprehensive medical
facilities. In most cases, however, it would violate the ADA if
ARC shelters were to deny acutely ill individuals with
disabilities the right to enter shelters, while permitting
acutely ill, non-disabled individuals to enter. Although the ARC
may refer such individuals to hospitals or other facilities that
are more capable of handling specialized medical care, it may
wish to set up systems to ensure that acutely ill individuals
are, in fact, able to reach such alternative care facilities, and
that these facilities are open and operating under disaster
conditions.

The American Red Cross is subject to a number of other

obligations under Title III of the ADA. For example, it must
remove architectural barriers in its facilities, when such
removal is readily achievable. It must also provide auxiliary
aids and services where necessary to ensure effective
communication with individuals who have disabilities. See
​ 36.303 and 36.304 of the Title III regulation. If the ARC is a
recipient of Federal financial assistance, it must comply with
the funding agency's regulations implementing Section 504 of the
Rehabilitation Act of 1973, as amended (Section 504). The
requirements of Section 504 are substantially the same as the
requirements of Title II of the ADA, which are described below.

The operations of a State or local Emergency Management

Agency (EMA) are governed by Title II of the ADA, which prohibits
discrimination against qualified individuals with disabilities on
the basis of disability in services, programs, or activities
conducted by a State or local governmental entity, such as an
Emergency Management Agency. A copy of the regulation
implementing Title II is enclosed for your convenience. Title II
of the ADA is based on Section 504, and the following discussion
is applicable to both laws.

The focus of Title II of the ADA and its implementing

regulation is to ensure that, to the extent that a State or local
governmental entity provides programs, services, and activities
to the public, they are readily accessible to and usable by
individuals with disabilities. Program access is discussed in
Subpart D of the enclosed Title II regulation. Under the
"program access" requirement, a public entity must operate each
of its services, programs, and activities, so that when viewed in
its entirety, that service, program, or activity is readily
accessible to and usable by individuals with disabilities. See
​35.150(a) of the Title II regulation.

Your letter does not include a discussion of the scope of

the duties legally required to be performed by EMA's or the
statutory framework under which EMA's operate. It also lacks a
discussion of the relationship between the ARC and individual
EMA's. If EMA's are required to arrange for emergency shelter
care in their respective jurisdictions, they may either do so
directly, or they may provide such services through third
parties, such as the ARC. However, as a covered entity, an EMA
must ensure that such third parties comply with the requirements
of Title II in delivering services on its behalf.

If, however, EMA's are not obligated to provide shelter

services, and do not, in fact, provide such services, they do not
violate the ADA simply by providing assistance to the ARC.
However, each aspect of the sheltering process in which an EMA
participates, must be performed in a nondiscriminatory manner.
For example, your letter states that EMA's may participate in the
selection of shelter sites. Under Title II, such sites must be
selected in a nondiscriminatory manner. See 35.130(b)(4). You
also include an example in which a Florida EMA agreed to provide
medical staff for a "special needs" shelter. In the latter
example, the activities of the Florida EMA are basic to the
provision of the service, and, consequently, the EMA would have a
substantial obligation to ensure that shelter operations did not
violate Title II of the ADA (and Section 504, if that EMA is a
recipient of Federal financial assistance).

Thus, in response to your question, whether an EMA is in

violation of Title II of the ADA is a question of fact that
depends on both the EMA's statutory responsibilities and on the
degree to which the EMA is involved in shelter operations. This
same analysis would apply in determining whether an EMA that
receives Federal financial assistance through FEMA is in
violation of Section 504.

Finally, you ask what type of access is required in a mass

care shelter. You note that the most frequently used facilities
are schools, churches, and government buildings, such as civic
centers. This question raises a unique issue because of the
short-term and sporadic use of facilities.

Title III entities, such as the ARC, are required to

eliminate architectural barriers in existing facilities when such
barrier removal is readily achievable, that is, easily
accomplishable and able to be carried out without much difficulty
or expense. See 36.304 of the Title III regulation. Title III
also contains accessibility standards which must be followed when
constructing or altering buildings and facilities subject to
Title III. However, given the nature of the ARC's use of
buildings for emergency shelters (we are assuming that the ARC
does not own or lease most shelter facilities), these portions of
the Title III regulation may not be generally applicable.

Even if these specific provisions are not applicable, the

ARC is obligated to comply with the general requirements of Title
III found in ​36.201 through 36.204 of the Title III regulation.
Among other things, the general requirements prohibit a public
accommodation from denying individuals with disabilities the
right to participate in the services the public accommodation
provides and from providing such individuals with segregated or
inferior services. These issues are best addressed at the
planning stages by selecting, to the greatest possible extent,
facilities that are physically accessible.

If an EMA is responsible, either individually, or with the

participation of the ARC, for selecting buildings to be used as
shelters, it must comply with Title II of the ADA in doing so.
Under the Title II regulation, it is not necessary for a public
entity to make each of its existing facilities accessible, as
long as it complies with Title II's "program access" requirement
and ensures that its programs and activities, when viewed in
their entirety, are readily accessible to and usable by
individuals with disabilities. However, given the unique nature
of disaster relief, it may not be sufficient to have only
designated facilities accessible. Under disaster conditions it
may be impossible for an individual to reach the "designated"
accessible shelter or safety concerns may dictate that the
individual take shelter immediately.

Under these circumstances, in selecting shelter sites,

public entities (as well as private disaster relief agencies) may
wish to follow the guidance for leasing buildings suggested by
this Department in the Preamble to its Title II regulation. As
noted in the Preamble, existing buildings leased by a public
entity are not required to meet accessibility standards simply by
virtue of being leased. However, at a minimum, the Department
encourages public entities to lease space that complies with the
minimum standard applicable to the Federal government when it
leases space. That standard is discussed in the Preamble to
​35.151 of the Title II regulation. The three elements of the
standard are: (i) an accessible route from an accessible
entrance to the areas where the primary activities for which the
building was leased take place; (ii) accessible toilet
facilities; and (iii) accessible parking facilities. Selecting
space that complies with this minimum standard, while not
required, will greatly facilitate both a public entity's
obligation to provide program access, and a private entity's
obligation to avoid discrimination on the basis of disability.

I hope this information has been of assistance to you. If

you require further assistance or advice, please do not hesitate
to write. The Department can also be reached through its ADA
Information Line at (202) 514-0301 (Voice) and (202) 514-0383
(TDD) 1:00 p.m. to 5:00 p.m., Monday through Friday.

Sincerely,

Merrily A. Friedlander
Acting Chief
Coordination and Review Section
Civil Rights Division

Enclosures (2)

1 The only exception to this requirement arises when an

individual poses a direct threat to the health or safety of
others, and that threat cannot be eliminated by a modification of
policies, practices, or procedures, or by the provision of
auxiliary aids and services. See 36.208 of the Title III
regulation for the definition of the direct threat exception and
for a discussion of the very limited circumstances under which it
may be applicable.