Overview
The United States is a country of small towns. While many of these small towns may be in varying distances to larger metropolitan areas, each has its own unique culture and its intention to be self-sufficient and supportive of its members. The case could be made that this independent spirit is what has made the United States a great nation, yet it should also be noted this same independence and self-sufficiency clashes with federal oversight and policy. The Americans with Disabilities Act (ADA) is an example of such an occurrence. The ADA encompasses the complex dance of applying national policy in such a way that allows local communities control to implement changes that best serve the community and the spirit of the law.
Title I: Employment
Title II: Public Services
Title III: Public Accommodations and Services Operated by Private Entities
Title IV: Telecommunications
Title V: Miscellaneous Provisions
Each of these provisions had a profound impact on the nation and the ability of persons with disabilities to have equal access. Despite profound national impact, relatively few people were aware of and understood this civil rights law.
With respect to small rural communities, the ADA can be a challenge. The challenge with the ADA implementation in small rural communities is that it forces compliance at the expense of local areas where there may be a small or nonexistent perceived disability population in the community. The ADA takes an approach that focuses on broad access and universal design, while the approach of the small town may be to respond to issues on a case-by-case basis. An argument made by a small town may be “Why go to the expense of building a ramp if there is no one in the community to use it?” Instead, when a member of the community develops a disability requiring accommodation, this same town may come together and ensure accessibility of the environment to fit his or her unique needs. While there are obvious arguments to this approach, it captures the heart of the debate of how small towns offer access in a world of dwindling public resources.
This chapter will provide a brief overview of the Americans with Disabilities Act (ADA) and its subsequent amendments of 2008, examine common barriers to the compliance to the ADA in rural areas, provide recommendations for improved compliance with the ADA (including issues of accessibility) for rural America, and posit future implications that may impact compliance with the ADA specifically in Kentucky. First, the chapter offers the Commonwealth of Kentucky a lens through which to understand the Americans with Disabilities Act and its implications in rural communities. Examples from Kentucky are woven throughout the chapter to contextualize the idea of the Americans with Disabilities Act and its implementation in rural communities, such as those in rural Kentucky.
Learning Objectives
- 1.
Name and describe the titles and provisions of the Americans with Disabilities Act of 1990 and subsequent amendments of 2008.
- 2.
Describe common barriers to compliance with the ADA in rural areas.
- 3.
Identify potential ways to improve compliance with the ADA in rural areas.
Americans with Disabilities Act
Definition of disability
Sec. 12102. Definition of disability |
As used in this chapter: |
… (1) Disability |
The term “disability” means, with respect to an individual |
(A) A physical or mental impairment that substantially limits one or more major life activities of such individual |
(B) A record of such an impairment |
(C) Being regarded as having such an impairment (as described in paragraph (3)) |
(2) Major life activities |
(A) In general |
For purposes of paragraph (1), major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working |
(B) Major bodily functions |
For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function including, but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions |
(3) Regarded as having such an impairment |
For purposes of paragraph (1)(C): |
(A) An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity |
(B) Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less |
(4) Rules of construction regarding the definition of disability |
The definition of “disability” in paragraph (1) shall be construed in accordance with the following: |
(A) The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter |
(B) The term “substantially limits” shall be interpreted consistently with the findings and purposes of the ADA Amendments Act of 2008 |
(C) An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability |
(D) An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active |
(E) |
(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as |
(I) Medication , medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies |
(II) The use of assistive technology |
(III) Reasonable accommodations or auxiliary aids or services |
(IV) Learned behavioral or adaptive neurological modifications |
(ii) The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining whether an impairment substantially limits a major life activity |
(iii) As used in this subparagraph |
(I) The term “ordinary eyeglasses or contact lenses” means lenses that are intended to fully correct visual acuity or eliminate refractive error |
(II) The term “low-vision devices” means devices that magnify, enhance, or otherwise augment a visual image |
Titles and Provisions of the 1990 Americans with Disabilities Act
The Americans with Disabilities Act consists of five titles, Title I, II, III, IV, and V. These five titles and subsequent amendment ensure equal access to community participation for individuals with disabilities, who live in the United States.
Title I: Employment
Definition of reasonable accommodation
Subchapter I – employment |
Sec. 12111. Definitions |
As used in this subchapter: |
… (9) Reasonable accommodation |
The term “reasonable accommodation” may include: |
(A) Making existing facilities used by employees readily accessible to and usable by individuals with disabilities |
(B) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities |
Definition of undue hardship
Subchapter I – employment |
Sec. 12111. Definitions |
As used in this subchapter: |
… (10) Undue hardship |
(A) In general |
The term “undue hardship” means an action requiring significant difficulty or expense, when considered in light of the factors set forth in subparagraph (B) |
(B) Factors to be considered |
In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include: |
(i) The nature and cost of the accommodation needed under this chapter |
(ii) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources; or the impact otherwise of such accommodation upon the operation of the facility |
(iii) The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities |
(iv) The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness or administrative or fiscal relationship of the facility or facilities in question to the covered entity |
Title II: Public Services
Title II provides individuals with disabilities equal access to public services and also extends provisions related to transportation as described in Section 504 of the Rehabilitation Act of 1973 (Sales, 2014). Title II prohibits discrimination on the basis of disability, as it pertains to the access of any state or local government services or programs, as well as public activities that would otherwise be accessible to all individuals within the community. Public services and entities may include access to public housing programs and postsecondary education, the use of a post office or postal service, polling locations (voting), libraries, streets, and courthouses. Title II also ensures equal access to public facilities such as telephones, public spaces (such as buildings), and bathrooms. Further, this title of the ADA establishes guidelines for the accessibility of public transportation. It requires that all vehicles used for public transportation that navigate a fixed route be accessible to all individuals with disabilities, including those who use wheelchairs (e.g., a wheelchair lift is required for public transportation vehicles). The law also prescribes alternate, accessible forms of transportation , if public transit vehicles are not accessible. Finally, Title II requires that all public transit rail forms (such as subway system or trains) have at least one accessible car.
Title III: Public Accommodations and Services Operated by Private Entities
Definition of readily achievable
Subchapter III – public accommodations and services operated by private entities |
Sec. 12181. Definitions |
As used in this subchapter: |
… (9) Readily achievable |
The term “readily achievable” means easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable, factors to be considered include: |
(A) The nature and cost of the action needed under this chapter |
(B) The overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources; or the impact otherwise of such action upon the operation of the facility |
(C) The overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities |
(D) The type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness or administrative or fiscal relationship of the facility or facilities in question to the covered entity |
Title IV: Telecommunications
Title IV of the ADA “requires telephone and Internet companies to provide a nationwide system of interstate and intrastate telecommunications relay services that allows individuals with hearing and speech disabilities to communicate over the telephone” (https://adata.org/learn-about-ada). Technology and services that assist in telecommunications include a telecommunication device for the deaf (TDD) and telecommunication relay services, whereby individuals who have a hearing or speech impairment are able to communicate with those who do not (and vice versa). Telecommunication relay services may be two-way, such as from a TDD to an individual who does not use such a device (and vice versa), or three-way such as a third party operator who relays information via speaking or typing (via voice or manually) from one party to the other. Title IV also includes requirements for closed captioning of verbal content that has been funded by the federal government, such as public service announcements.
Title V: Miscellaneous Provisions
Title V delineates processes and procedures related to enacting the ADA, including procedures related to litigation and filing complaints, provides additional clarification of the law, describes agency and public assistance for carrying out the law, specifies agency assistance in implementation of the law (e.g., Equal Employment Opportunity Commission, Attorney General, Secretary of Transportation), and describes awarding of grants or contracts for assistance in implementing ADA requirements.
Americans with Disabilities Act Amendments Act of 2008
In 2008 the Supreme Court overturned two court cases (Sutton vs. United Airlines, 1999; Toyota Motor Manufacturing, Kentucky, Inc. vs. Williams, 2002) with a ruling that limited the definition of disability by reducing the activities that could be considered a major life function, effectively limiting those that could be protected by the ADA. Under the court’s interpretation of the ADA of 1990, courts ruled against extending provisions of the ADA to individuals with cancer, diabetes, human immunodeficiency virus (HIV), mental illness, and epilepsy (https://www.ada.gov/nprm_adaaa/adaaa-nprm-qa.htm, 2014).
In response to the conservative rulings by the Supreme Court that went against the original intent of the law, a bipartisan effort in the Congress responded to these rulings and resulted in the Americans with Disabilities Act Amendments Act of 2008 (P.L. 110–325; ADAAA of 2008), which was signed into law by President George W. Bush. The ADAAA of 2008 “revised the definition of “disability” to more broadly encompass impairments that substantially limit a major life activity, [and] specified that assistive devices, auxiliary aids, accommodation, medical therapies and supplies have no bearing in determining whether a disability qualified under the law” (Sales, 2014, pp. 38–39).
The ADAAA of 2008 also established that an individual who is “regarded as” having a disability refers to “how a person has been treated because of an actual or perceived physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature or severity of the person’s impairment” (https://www.ada.gov/nprm_adaaa/adaaa-nprm-qa.htm). However, individuals who are protected by the “regarded as” section of the law are not entitled to the reasonable accommodation, unlike those individuals who have disabilities as defined by the “disability” definition of the ADA.
Research Box 31.1
Title of the Research
The ADA, 20 Years Later: The Kessler Foundation/National Organization on Disability 2010 Survey of Americans with Disabilities.
Objective
This survey was one administration of a longitudinal survey, administered six times since 1986, that measured the differences between individuals with disabilities and individuals without disabilities on several indicators of quality of life. These domains included employment, poverty, education, healthcare, transportation, socializing, going to restaurants, attendance at religious service, political participation, and satisfaction with life. The 2010 administration of this survey assessed three additional domains of technology, access to mental health services, and overall financial situation. The research also included measures on the ways in which the Americans with Disabilities Act impacted individuals with disabilities related to these indicators.
Method
This study employed a cross-sectional, basic sampling technique using random-digit dial method for a household, telephone survey of adults, ages 18–64, with disabilities (N = 1001 or an adult who was within the household who was able to serve as a proxy which was equivalent to 10% of the population of those sampled with disabilities) and without disabilities (N = 788). The survey also utilized an “oversample of people with disabilities in the labor force” (p. 160; N = 315) in an online survey, to increase the accuracy of estimations for that population.
Results
The Kessler Foundation/National Organization on Disability 2010 Survey of Americans with Disabilities found that despite the passage of the Americans with Disabilities Act (ADA) in 1990 and the subsequent ADA Amendments Act of 2008, there was ongoing, consistent, and substantial differences between those with and those without disabilities in most domains measured, with the exception of improvements in the domains of education and political participation. The study also found that the economic environment of recession impacted individuals with disabilities more so than those without disabilities, evidenced by larger differences between the two groups in the domains that were measured during this time.
Conclusion
There continues to be a significant gap between individuals with and without disabilities on the indicators of quality of life, as measured by this study. While the ADA appears to have aided in decreasing the gap in education and political participation between individuals with and without disabilities, other indicator discrepancies appear to have remained unaffected. Other general findings of this study suggested that there was no one domain that was “the” indicator of quality of life for individuals with and without disabilities. Instead, the survey determined that indicators that contribute to quality of life are as varied as the uniqueness of the individuals who were surveyed and were only partly determined by any one characteristic. More accurately, it is likely that a composite of personal characteristics, type of disability and extent of disability, and contextual factors in which a person lives, as well as other factors not measured, contribute to the impact of indicators on quality of life.
Demonstrate your understanding of this study as it applies to rural communities.
The Kessler Foundation survey included a question about whether the ADA had “made your life better, worse, or made no difference” (p. 144). Only 23% of the respondents indicated that the ADA had made life better. Sixty-one percent of the respondents stated that the ADA made no difference, 7% indicated that they had never heard of the ADA, and 4% stated that the ADA had made life worse. As this was a nationwide sample of the United States, we can assume that people in both urban (highly populated) and rural (sparsely populated) areas were polled.
How do you think these numbers would change if they only reflected rural areas or small cities, towns, and communities? Do you think the ADA would have more or less of an impact for individuals who live in small, rural communities? How and why?
One State’s Journey: Kentucky as a Case Study in ADA Compliance
This section looks at the state of Kentucky in general, as one case study example of the implementation and compliance of the ADA in rural areas. To better understand the context of Kentucky’s current status, data related to the population, economic, workforce, and health of the population is provided below.
Kentucky Population Composition and Characteristics
The Commonwealth of Kentucky (pop. 4,413,457) is a rural state that has struggled with ADA compliance. Kentucky is a largely rural state with three metropolitan areas (Louisville, Lexington, and Northern Kentucky – a Cincinnati, OH suburb), all within a short drive from each other, configuring what is often referred to as the “golden triangle.” This “golden triangle” is surrounded on the west, south, and east by large rural areas comprised of relatively small communities. Kentucky is ranked 26th in population among the 50 states and 24th in population density with 109 persons per square mile. The median household income is $43,342, and 18.9% of the population lives below the poverty level. In the 2014 census, 83.5% reported having a high school diploma, and 13.2% reported being uninsured (United States Census Bureau, 2016).
Unique to Kentucky is its local governance. While a relatively small state in area, the state has 120 counties, half of which have populations below 20,000 people (United States Census Bureau, 2016). This means there are 120 county governments, 120 county judge executives (the highest elected county official), 120 county clerks, etc., each with their own unique culture and history, which has significantly impacted the ability for the Commonwealth to implement broad and complicated laws, such as the ADA.
Health of Kentucky
In terms of health , Kentucky perennially ranks at the bottom of most state rankings. According to the Kaiser Family Foundation (2016), the state was ranked 45th in life expectancy at 76.0 years, with 24.3% of the population reporting being in poor physical health and with 34.6% reported being in poor mental health. Kentucky was ranked 16th in drug-related deaths and third in the percentage of the population that smoke tobacco on a regular basis. Smoking tobacco increases the risk of disability linked to a number of health conditions, including respiratory disease, cardiovascular disease, type 2 diabetes, and cancer (Center for Disease Control, 2016). The Kaiser data also confirmed a high incidence of obesity and diabetes for residents of Kentucky, which are both risk factors for disability. Such statistics do not point to a healthy citizenry.
Economy and Employment in Kentucky
The “golden triangle” has fully recovered from the Great Recession through its concentration of automobile assembly manufacturers, major shipping and logistics providers (such as those that provide trucking and warehousing services), and healthcare. In contrast, rural areas that have historically relied on agriculture and coal, which tend to have severe boom (i.e., times of great wealth, production, demand, and increased employment opportunities) and bust cycles (i.e., times of decreased yields, low demand, and decreased employment opportunities), have had more difficulty bouncing back economically.
Kentucky also once had a flourishing textile industry, but most factories dwindled after the passage of the North American Free Trade Agreement (NAFTA, 1994). NAFTA allowed for reduced or eliminated tariffs on goods traded between the signatories of the United States, Canada, and Mexico. With the ability to trade at reduced or no taxes, goods (such as agricultural products) could be procured from less expensive sources, resulting in less demand in areas where they were produced at higher prices. This left communities without steady, skilled, and semiskilled jobs which in turn had an impact on local business owners who sold goods and services to the employees of these manufacturers. The loss of these industries and the unpredictability of the coal and agricultural economy have left many rural Kentucky communities with limited resources and a crumbling infrastructure.
The data clearly indicates some challenges faced by rural Kentucky , as many factors impact local, regional, and state level decision-making. These factors must be taken into consideration when reviewing whether a state like Kentucky chooses or does not choose to comply with the ADA. The issue is much more complicated and complex in nature and will be explored throughout the chapter.
Common Barriers to the Compliance with the ADA in Rural Areas
While the Americans with Disabilities Act (ADA) impacted the United States at large, it had substantial implications for rural areas and communities. Since the passage of the ADA, several barriers to its compliance have been identified. Common barriers to ADA compliance in rural areas include barriers related to physical accessibility, transportation, and compliance with ADA Title I Employment provisions.
Physical Accessibility
A criticism of the ADA was that, like its predecessor (Section 504 of the Rehabilitation Act), it was an unfunded mandate. Local government and states were expected to develop transition plans to comply with the various titles of the ADA, with no additional funds or resources to implement the plans. Obviously, this is a significant barrier because many rural communities have limited resources to maintain primary services to its citizenry; and the additional costs of curb cuts, ramping, remodeling, and accessible bathrooms may be overwhelming to budgets. This becomes a perceptual barrier, because citizens and legislators may believe that only a few people with mobility or physical disabilities reside in any given locale, so investing in accessibility may be considered a major expense that only benefits a very small or nonexistent subset of the community. While arguments can be made that an aging baby boomer population will increase the need for an accessible environment and that an entire community can benefit from being physically accessible, a federal mandate for this significant expense can lead to resistance and contempt toward the disability community.
Barriers to Transportation
As has been previously discussed in Chap. 3, transportation for persons with disabilities living in rural areas has a long history of not meeting the demand for service. For individuals to take full advantage of the provisions of Titles I, II, and III of the ADA, they must have reliable and accessible transportation to benefit from the inclusive nature of the law. For example, an individual with a disability cannot benefit from the equal access to employment if they do not have transportation to get to a job. From an ADA perspective, however, the focus is not on providing disability-related services. As a civil rights law, it is focused on ensuring equal access to public or private services in existence. For many communities, equal access to transportation is not an issue because there is no readily accessible public transportation system for these communities.
For those localities fortunate to have transportation systems in place, there are still significant barriers to providing accessible transportation. As is a common theme, cost is an issue that remains an obstacle because vehicles must be retrofitted with lifts or purchased new with modification. Both are expensive options. Upkeep and maintenance of the equipment is also a significant expense, as the many moving parts are prone to breakdown frequently. Training of personnel in effective interactions and the safe unloading and loading of wheelchair users may also be a challenge, as drivers may have minimal experience with persons with disabilities.
Barriers to Compliance with Provisions Related to Title I: Equal Employment
In their promotion of the Americans with Disabilities Act (ADA), advocacy groups of persons with disability demanded full inclusion in society, which can only occur if persons with disabilities are able to work and earn wages commensurate with their peers. The ADA was intended to level the playing field by not allowing businesses to exclude applicants because of the presence or implied presence of a disability (ADA, 2000, 2008). Employment, in general, is often a challenge in rural areas, as these areas tend to have more limited labor markets than metropolitan areas. Primary employment areas in rural sectors tend to be heavily comprised of agricultural and natural resources and a variety of low-skilled service industry positions. Many of the available jobs either are extremely physically demanding or require a set of specific technical skills, which do not always match the employment needs of persons with disabilities. The remaining, less physically demanding jobs are very competitive. Traditionally, when the competitive employment sector is flooded with qualified applicants, individuals without disabilities are more likely to be selected for employment over individuals with disabilities (Bauer & Growick, 2003). This is part of a larger and ongoing trend in employment of individuals with disabilities (e.g., underemployment) in the competitive labor market (Bricout & Bentley, 2000).
Discussion Box 31.1: Business and Public Service Physical Accessibility
Since its inception, the ADA has been criticized for its increased costs to businesses, both large and small. Fueling this criticism, business owners complain they had to heighten expenses to make their businesses meet the letter of the law, even though the potential population was relatively small or even nonexistent. Businesses also complained of frivolous lawsuits brought forth by persons with disabilities that had not even requested accommodation to utilize the services of their businesses. Their belief was that this was being done so attorneys could get their fees paid by the business should the case be resolved in the plaintiff’s favor (Los Angeles Times, 2000). Actor/Director/Business Owner Clint Eastwood was an earlier champion of language that would require persons with disabilities to notify businesses of access issues prior to initiating legal complaints (Los Angeles Times, 2000).
While these changes never materialized, even with the ADA Amendments Act of 2008, efforts continue by various groups to interject “notice” proposals in the ADA to protect businesses. One such effort was the ADA Notification Act, introduced by US Congressman Duncan Hunter in 2009. According to Congressman Hunter , businesses would not be relieved of their responsibility to meet the requirements of the ADA, but instead “….it provides businesses with a reasonable opportunity to evaluate alleged violations and make the corrections before the legal process can begin.” The legislation also claims to protect businesses from unnecessary costs related to “frivolous” lawsuits (Congressman Duncan Hunter Website, 2009).
What are your thoughts regarding this issue for businesses? Is it fair for businesses to be required to make costly physical changes that may never be utilized? What are the caveats of requiring persons with disabilities to provide notice to a business prior to initiating a complaint? What would be the long-term impact on the ADA if a notification act was passed?
How would notification laws possibly impact businesses located in rural areas? If these notification laws extended to government buildings and schools, how would that impact access for individuals with disabilities living in rural areas?
Impact of Rural Culture on ADA Compliance
The ADA was developed through years of advocacy of persons with disabilities seeking to have full access and be treated as equals in society. This phenomenon was a break from the traditional societal views of a life of dependency and lower social status for persons with disabilities.
In rural areas, where independence and self-sufficiency are highly appreciated, people who have physical skills and abilities, acquired technical knowledge, and a hard work ethic are considered to be of a high value. Often there is also an expectation that every person will contribute to the community or family unit (Bauer & Growick, 2003). Individuals who do not have the physical skills or capabilities to contribute to the family unit or the community may be marginalized and made to feel as if they have fewer rights, because of his or her perceived dependence on the community or family unit. This is a major barrier, especially when the culture suppresses the individual from advocating for his or her right to access and equality. This stifled advocacy for oneself prevents the accurate representation of the presence of disability in the community, causing local leaders and members to assume that there are few or no persons with disabilities in the community.
Barriers to ADA Compliance in Kentucky
Physical access
Access to government buildings and removal of physical access barriers have been a struggle in rural Kentucky. Government services and some small businesses historically were located in non-accessible buildings, many of which were built by the Tennessee Valley Authority in the recovery period of the Great Depression. Compounding the issue of ADA compliance, rural communities that were often established as transit and commercial centers that shipped goods to larger metropolitan areas were located on or near a river. Buildings constructed near rivers are designed in such a way that floodwaters will not damage the buildings and are typically built high off the ground. Buildings set higher than ground level are not often easily accessible to wheelchair users or those with mobility impairments. Some accessibility was provided by Kentucky’s judicial branch that modernized courthouses (to be accessible to all individuals) across the state during the late 1990s and early 2000s. In many rural communities, the courthouse is the centerpiece of the community. These new courthouses were built to ADA specifications and greatly increased physical access for all in a positive manner.
State Level Support and Technical Assistance
On a statewide level, the mandated office designated to coordinate and enforce compliance related to all titles of the ADA was initially located in the office of the governor, until 2002, when it was moved to the Education and Workforce Development Cabinet. This had a significant impact on the influence of the office as the coordinator no longer had a direct line of communication to the governor, reducing the ability of ADA-related issues to garner attention and priority. While the position is still appointed by the governor, it has been minimally staffed since its inception and has had little budget to reach out to local communities, which may indicate where there have been several Department of Justice findings against rural communities in counties related to physical access to public services and buildings (Department of Justice, 2016). The most egregious of these findings was the Department of Justice investigation of jails and government buildings in 23 Kentucky counties designed by Architecture Plus for lack of compliance with the Americans with Disabilities Act (Messenger-Enquirer, 2005).
Voting
In many rural areas of the state, voting can also be a challenge for persons with disabilities. Many polling sites in small communities were located in a business, such as the local general store, a church, or a community center. In some cases, the polling place was in the only building in the community, so options were limited. Unfortunately many buildings were not physically accessible, and poll workers did not have training on how to assist individuals with visual or hearing impairments. Persons with disabilities were effectively being denied their voice in the local community because they were being denied their right to vote through the inaccessibility of their environment (physical and social). This went largely unnoticed until the 2011 general election in which Secretary of State, Allison Lundergan Grimes, worked cooperatively with county clerks to ensure equal access for persons with disabilities to polling places. While these efforts greatly increased access, they had an unintended consequence. Polling places were removed from some communities because of a lack of an accessible polling site in the local community, requiring members of those communities who wanted to vote to travel longer distances to vote.
Transportation
To say that public transportation in Kentucky is a challenge is a vast understatement. Public transportation is not readily available except in the metropolitan areas, and even those services are limited. Some of the larger towns have small bus routes, many of which do serve individuals with disabilities. However small bus route service area and hours of operation are limited, making it difficult to utilize the services for reliable transportation to and from a job.
Employment
As can be noted by the high unemployment rate for persons with disabilities in Kentucky, competitive employment opportunities remain a challenge (Kentucky Career Centers, 2016). While the reasons for these elevated unemployment rates are complex, there is little evidence of support of the employment provisions of the ADA by either the executive or legislative branch. Kentucky is not currently an Employment First state, there are minimal efforts to promote the ADA or employment for persons with disabilities, and subsequently the ADA hardly gains notice by businesses or the public at large.
Related to employment and equal, non-discriminatory access to employment, Kentucky’s public Vocational Rehabilitation (VR) program has not had the funding to meet its federal match requirements in several budget cycles and currently institutes order of selection, prioritizing individuals with the most severe disabilities first and has had to place eligible consumers who do not meet the criteria for most severe disabilities on a waiting list for services until money became available (H.B. 303 Free Conference Committee Report, 2016). Insufficient funding hampers the ability of the VR program to conduct outreach and education activities to employers regarding ADA Title I responsibilities. The approach implemented by VR and its service providers has been one that emphasizes positive aspects of creating a diverse workforce through hiring persons with disabilities and further explaining the benefits of employing individuals with disabilities, rather than taking a legalistic, adversarial approach toward employers. Once the person with a disability is hired, these agencies offer support to assist the employer and employee and navigate any disability-related issues. A legalistic approach may be viewed as coercive or forceful by employers and may not be effective for hiring and retaining employees and a positive employment environment. There is a concern that the forceful approach of the law may cause employers (unintentionally or intentionally treat employees) in a negative manner, especially if they feel obligated to hire because of a law, and businesses will be more likely to invest in someone they hired for their abilities.
Impact of Ongoing Factors that Influence ADA Compliance in Rural Areas
Diminished Budgets and Competing Priorities
As rural America comes to grip with how to comply with the provisions of the ADA and improve access to its citizens, several factors exist that will likely impact future compliance efforts. One obvious example is the diminishing financial resources and the aging infrastructure of rural communities .
If one was to poll public office holders, community planners, and the many government employees involved in the planning and development of rural areas, the results would likely show strong support for the concepts of the ADA. While some of those polled may argue that the ADA was not necessary or it was an overreach of power by the federal government, it is unlikely there would be many arguments made that persons with disabilities shouldn’t have access to their community or to employment. The problem is that equal access is not free. Curb cuts, ramps, and level sidewalks have a cost, as do many other things that comprise a small communities’ budget. While community leaders may want to create accessible spaces, they often face difficult decisions regarding the spending of funds and consideration of the greater good for its citizens. While not complying with the ADA is a violation of a federal law, the more immediate needs related to other budgetary concerns may trump the potential risk of legal action.
Compounding this issue is that many rural communities rely on property and sales tax to provide the majority of their budget . As the populations of these towns and counties have remained stagnant or decreased, so too does the tax base and property values. Local leaders, elected by a majority vote, are assigned the task of providing for the needs of the community, and the budget may be barely enough to provide basic services, leaving little money for improvement or infrastructure upkeep. In their view, the needs of a minority of the population may be put to the side or compromised, so that other city services can continue or infrastructure be addressed (Hudson, 2010).
Aging Populations in Rural Areas
Budgeting and community planning become more critical as the minority eventually becomes the majority, as residents of rural communities increasingly become comprised of older adults. Colello (2007) attributed the growing percentage of older adults to the “out-moving” of younger adults and “in-moving” of older adults that had previously lived in the area and had moved away. Increasing populations of older adults increase the likelihood of an increase in disability as part of the natural aging process, which would equate to an increase in the need of accessible streets, buildings, and transportation. As this trend continues, Hudson (2010) believes that the older adult population will actively advocate for their right to better access to buildings and public services.
Availability of ADA Expertise
One other critical factor to ADA compliance in rural areas is an availability of expertise regarding the law itself. The ADA is a very technical law, especially when considering physical accessibility requirements. Complete knowledge of the various aspects of the law requires expertise in architecture, engineering, human resource policy and law, assistive technology, and the impact of disability on functioning. This is a skill set few possess, and those that do possess such knowledge command consultant fees out of the reach of most rural budgets. There is no licensure or certification to establish the expertise of someone who purports to be an ADA expert. The National Institute on Disability, Independent Living, and Rehabilitation Research has funded the ADA National Network, comprised of ten regional technical assistance centers, to provide information and education materials to businesses, communities, postsecondary education entities, and individuals with disabilities (ADA National Network, 2016). Their websites and expertise serve as valuable resources to communities; however their resources are limited in their ability to provide individual consultation with small communities.
Rural communities seeking expertise regarding the ADA have no clear manner by which to identify a credible and qualified advisor that is able to offer individualized, comprehensive technical assistance to small communities . Questions for which advisement may be warranted include: How will communities that want to improve access know how to do so appropriately? How will communities know the difference between meeting the minimum ADA Standards and Universal Design, which focuses on creating accessible spaces that meets the needs of everyone? Fundamentally, without access to reliable information and expertise, how can rural communities be expected to comply in a manner that truly meets the requirements of the law and the actual needs of their citizens?
Rural Kentucky: Impact of Ongoing Factors that Influence ADA Compliance
These factors, when compared to the example of Kentucky, highlight the complexities for the path forward for ADA compliance in small town America. As noted in a newspaper article analyzing 2010 Census data, the Estep (2011) found rural areas of Kentucky are seeing a slow decline in population, even though the state population grew 6% from the previous census. Not only is the rural population shrinking, it was losing young families, with many young adults that go away to college never coming back to their home community.
For those that remain, there are few opportunities for employment , as rural counties of further distance from the “golden triangle” have unemployment rates nearly double the state average (Kentucky Career Center, 2016). Drug and alcohol abuse are rampant, with Kentucky ranked 7th in opioid death rate, 27th in nonmedical pain reliever use, and 26th in the number of citizens reporting illicit drug use, with a disproportionate report of percentage levels higher in rural areas of the state (Kaiser Family Foundation, 2016). This has led to a correspondingly elevated rate of crime related to the manufacture and trafficking on drugs (Tunnell, 2006). This is slowly eroding the workforce of qualified employees and discourages businesses to expand or grow in these areas. The rural areas are in danger of losing a generation, which has repercussions, because young adults should be the generators of industry and the economy. This loss of population takes away growth and resources, preventing rural communities from addressing many issues, including the ability to address physical access.
Rural Kentucky is also impacted by a dearth of knowledge and expertise available for communities seeking to improve access to comply with the provisions of the ADA. As stated earlier in the chapter, it appears policy makers in Kentucky have taken an approach focusing on meeting minimal compliance requirements of the ADA. The office of the State ADA Coordinator has been minimally staffed and chronically underfunded. This has impacted the office’s ability to conduct outreach to rural communities or to even respond to requests for information. A review of the Kentucky League of Cities and the statewide chamber of commerce, both important informational resources for rural areas, reveals minimal information regarding persons with disabilities and nothing related to physical access. With the state not taking any significant stance in support of the ADA and no other real source of individualized technical assistance for small communities, the state’s rural communities seem to have minimal local options to seek assistance in fulfilling the provisions of the ADA.
Recommendations for Improved Compliance in Rural America
The drafters of the Americans with Disabilities Act (ADA) seemed to understand the monumental changes the law would require, which they appeared to counterbalance by allowing communities to develop transition plans to set priorities as to how the various provisions would be met with future financial resources. The enforcement side of the law was even minimized to the extent that it was difficult for the complainants to receive financial reward due to court action. Ensuring compliance has typically been based on investigations that occur because of an accessibility complaint filed against the community. This relies on members of the local community who have disabilities to file complaints, but culture forces may work against them advocating for themselves for risk of being ostracized by those around them. This complaint-based enforcement also forces the community to take an adversarial role when working with members of the disability community.
But there has to be a better way. After 25 years, many states have yet to fulfill the promise of the Americans with Disabilities Act, and it is clear the current approaches are not affective. This section will discuss some recommendations to improve compliance with the letter and intent of the ADA.
Financial Incentives
A carefully prepared financial incentive plan could encourage communities in meeting the required ADA provisions. This type of incentive could take several approaches.
Grants for rural community accessibility projects
This type of funding could potentially prioritize and support accessibility initiatives for rural communities. This could potentially fund capital projects or efforts to overhaul policies and procedures or inaccessible websites in an effort to meet ADA requirements.
Address specific accessibility needs in a community
Create a partnership with local disability community
Do not require cash outlay by the local area
Would likely raise awareness of ADA
Need significant federal or state funds to have an impact
Will likely need an award process, which could be cumbersome and expensive
Require new funding streams in a time when government is seeking to decrease its spending
Rebates, reimbursement, or loan forgiveness
This type of approach would either pay back or forgive future payments to communities who complete targeted provisions of the ADA. The communities could have a loan or bond forgiven, forgiveness from future tax payments, or any other future cost that could be leveraged.
Do not require new funds
Require only minimal oversight in administration
No grant process
Negative overall impact on a federal or state budget, depending on the loan or payment forgiven
Request initial cash outlay by the community for which the community may not have available
Low-interest loans
This option would be similar to the rebate/reimbursement option, but instead of payments being returned or forgiven, communities could apply for low-interest loans to complete ADA-related projects.
Do not require funds upfront by community
Address specific disability needs in the community with cash infusion
Have a net zero impact on budget, as funds loaned will be repaid
Require availability of funds from either state or federal sources
Possibility of a cumbersome loan application process and oversight
Default risk by rural communities
Consultation funds
In this option, rural communities would have access to funds to purchase the services of a consultant to advise on community planning related to the ADA.
Lower cost option
Can provide more comprehensive planning
Communities may not have funds to pay for projects in accessibility plan.
Need for a qualification process to determine the qualifications of appropriate consultants.
It should be noted that each of these financial incentives should not be considered mutually exclusive options. Multiple incentive programs could be offered to assist rural communities with complying with the provisions of the ADA. Regardless of the methodology, it is important for rural communities to have access to fiscal resources to address accessibility.
Development of Technical Assistance Resources
While the Department of Justice (DOJ) offers an information line (https://www.ada.gov/taprog.htm) and a multitude of technical assistance documents and materials, no true resource exists to provide individualized consultation to rural communities. Because of the investigation responsibilities of the DOJ, communities may be reluctant to reach out to federal agencies for fear of raising suspicion. Also, the culture of the community may place more value on the expertise of someone they know at a more local level.
In terms of creating this expertise in every community, there is certainly ample information available to educate local leaders; however it is unrealistic to expect local communities to have the capability and staff to develop the expertise to meet the many requirements of the law, when the sheer nature of being a leader in a small town may require them to wear a multitude of professional hats. Rural communities need resources, and they need them to come from resources they trust. There are several strategies that could be utilized.
State Level
States could be incentivized to increase their expertise and outreach to rural communities regarding ADA compliance and the concept of integration. This could be accomplished by increased funding to state-level ADA offices.
No new administrative level
Available expertise possibly known on a local level
Extra costs may be burdensome to state or federal budgets.
State level resources may not be trusted by local communities.
Private or not-for-profit organizations
Communities often belong to private or non-profit groups, such as a league of cities or association of counties that provide services to communities and advocate the behalf of their members. In this option, grants could be made available to these organizations to provide ADA Technical Assistance to the rural communities.
May be able to individualize services.
Information comes from a trusted source.
Develops awareness of ADA in the organizations.
New funding stream and process.
Not all communities in need of assistance belong to these groups.
Area Development Districts (ADDs)
ADDs serve as a partnership among regional areas of a state, working together to develop region-wide strategies, provide human services, develop a workforce, and administer various grants (Northern Kentucky Area Development District, 2016). ADDs could be provided grant funds or other incentivized to develop and provide consultation programs to rural counties.
Administrative structure already in existence.
ADDs have knowledge of the region.
Could be individualized by the ADD.
Possible onerous grant process.
Regional political factors may impact availability of funds to all rural communities in need.
Lack of available ADA expertise available to ADDs.
Outreach to the Rural Disability Community
One of the unique issues of rural communities is its culture, which may not be respectful, accepting, or aware of the needs of individuals with disabilities. Because the value of the rural community is typically tied to “usefulness” and the ability to contribute, persons with disabilities are often not viewed as having a value in the community. While this may be more unconscious or unintentional, it still leads to the marginalization of the disability community as a whole. Rural towns need to reverse this cultural aspect and reach out to the disability and aging community, as the community can benefit as whole if it is inclusive of the unique views, needs, and perspectives of all its citizens.
To change this cultural phenomenon, communities will have to proactively reach out to the disability community, which will be a difficult task, as the persons with disabilities living in rural areas are often isolated. Rural leaders will need to go where this population is likely to frequent or centers of the community where people tend to gather. This could include the public health department, local physicians, libraries, community colleges, school systems, and the legal system. Agricultural extension offices and AgrAbility programs would also be good resources for outreach to an aging and/or disability community. Police departments often serve as the face for a community and may prove valuable in identifying individuals with disabilities. Human service workers are also resources in this endeavor, because they too have relationships with a wide variety of the citizens and are often aware of the acute needs of those in the community. The religious community can also serve as a valuable and motivated partner, as spirituality often is a pillar of the community and many churches seek to be good civic citizens as well, providing services such as food and transportation to those that may be impaired due to a disability.
After identifying this group , the local communities will need to engage them in civic planning to ensure their needs are heard and hopefully met through careful planning and the building of trust. Culture is often very difficult to overcome, but it is critical for local rural community leaders to reach out so that the true intent of integration for persons with disabilities can continue to move forward.
Case Study 31.1: JJ
JJ was a star athlete enjoying his junior year of high school in 1990, in a small town in southern Kentucky with a bright future in front of him. He excelled in multiple sports, receiving multiple scholarship offers to play baseball and football at the division I college level. All of that changed in an instant when he was involved in an accident on the football field, suffering a spinal cord injury, leaving him as a person with quadriplegia, with no function in his arms and legs.
Once his medical condition stabilized after an extended stay in acute and then subacute rehabilitation facilities, he returned to his small town. Because this was prior to the Americans with Disabilities Act, very few of the buildings in his town were accessible to someone using a wheelchair. He could not see a local doctor because his building was not accessible. He could not shop at many of the local stores because they did not have accessible entrances, nor could he cross the street because there were no curb cuts. While his high school was supposed to be wheelchair accessible because of requirements of the Rehabilitation Act of 1973, he was unable to access many of the classrooms, the gymnasium, or even the football field where he was once a star. It was not that the community did not care; they did not know how to meet his needs. Because the community was so small, they had never encountered someone with his significant physical limitations. But they wanted to help. JJ was so popular and well liked in his community people were compelled to help him.
So, his family and members of the community worked together to remove the many barriers that impacted his access. It started at his church, where his father was a pastor. They built a ramp that would allow JJ to enter the sanctuary and made sure all doorways and hallways were accessible to his large wheelchair. The school sought experts from the Office of Vocational Rehabilitation for assistance in becoming more wheelchair accessible. School officials worked with JJ to make sure he had equal access to classrooms, offices, or any place a nondisabled student could go. They paved an accessible pathway to the football field and ensured him access to the student section so he could cheer on his teammates. The family worked with the local leaders to make the community more accessible by advocating for curb cuts and ramps to public facilities, and his proudest day was when he was able to enter a previously inaccessible polling place and cast his own vote. In some cases, local businesses made their entrances and buildings more accessible.
After his senior year, JJ went away to a relatively close midsize state university, where he majored in journalism. He came back home and worked for the local paper for many years as a sportswriter. This required him to travel to neighboring school athletic fields and gymnasiums, which in turn made these school systems evaluate their accessibility.
By the time JJ left his position at the newspaper and went to Lexington to work in a marketing position, his advocacy efforts had a profound difference on making many of the communities in the area more accessible and exhibited how a community can rally around its citizens with disabilities and be truly inclusive.
The Curious Case of Kentucky: What Is Next?
In this chapter we have outlined the many challenges related to compliance with the intent and provisions of the ADA in the state of Kentucky. Some of these challenges are a result of uncontrollable factors such as the topography, the economy, demographic shifts – to name a few. But evidence is also present that Kentucky has not embraced the civil rights legislation that is the ADA and has in some instances ignored the requirements of a law that seeks to promote the quality of all citizens with varying degrees of abilities.
The intentionality of noncompliance is complex, and multiple arguments could be made on either side. Is this a rural state flexing its muscle in regards to its independence by delaying or ignoring federal requirements? Does it not care about well-being and quality of life for a significant proportion of its population? Could it be that there aren’t enough resources available to assist communities in implementation and the other emergent factors are too great to warrant the necessary effort?
Regardless of the reason, Kentucky must carve a path forward to increase its awareness of, and compliance with, the ADA. But many questions remain, and many physical and attitudinal barriers exist. The first challenge will be finding a person, office, or entity to carry the disability rights flag into the political and social arenas to promote the advantages of integrating persons with disabilities. State agencies that provide services to individuals are administered by governor appointees who are often beholden to the direction of that office for fear of losing their job. The state-level disability advocacy groups often focus primarily on services and issues related to their specific disability area rather than general integration and ADA compliance. The state-independent living centers are prime candidates to head this effort, but are significantly hampered by limited resources, with only two Part C centers and one Part B center operating in the state.
Assuming a group or entity takes up the banner of inclusion and ADA compliance, significant efforts will be necessary to conduct outreach and education to community leaders, businesses, members of the state legislature, members of the community, postsecondary education, service providers, etc. There would also have to be a monumental outreach through a multitude of community partners to reach the rural disability community, who up to this point have never been considered or contacted. Because of their isolation in rural areas, people with disabilities have not had the opportunity to communicate with each other and advocate for their rights.
If this outreach was successful and mobilized action by the various parties, politicians, and communities to make the decision to fully support the ADA in rural Kentucky and the community of individuals with a disability advocated for their rights, there is still the matter of available expertise to consult these communities. Because of a lack of attention paid on a statewide level to the ADA, there is little expertise to draw upon in terms of civic planning. Therefore, funds would have to be made available to hire consultants to assist in the planning process. These consultants would not likely be from Kentucky, because there is often not a substantial presence of ADA expertise available locally. Rural communities may be resistant or reluctant to trusting or valuing the input from such an outside consultant or expert.
Assuming the accessibility plans to make the rural were developed and approved by all of the necessary groups and agencies, these plans would still have to be executed. To execute these accessibility plans, funds must be available to make the necessary changes, and as we have discussed, many rural communities in Kentucky barely have the necessary funds to maintain basic services. So we have taken a very long journey toward integration only to end up at a very predictable place. Without substantial financial resources, rural communities will struggle in providing for the provisions of the ADA.
This is not to say that it would be impossible to accomplish ADA compliance in rural Kentucky; it is merely to illustrate the substantial effort and resources necessary to meet intent of the law. The implementation of the ADA was intended to be inertial in that states/communities/counties/colleges would incrementally implement non-discriminatory policies and improve physical accessibility , which would provide greater access and bring about more change. For states and communities that chose not to take that approach, there is no quick fix, as there is no magic financial bullet to fix the various issues. For communities to comply with the ADA, they must take on the approach many cities and towns took before them, which is to address the ADA requirements, one ramp, one accessible entrance, or one curb cut at a time.
Resources
- 1.
Federal Department of Justice Americans with Disabilities Act information page – www.ada.gov
- 2.
Americans with Disabilities Act National Network – adata.org
- 3.
Americans with Disabilities Act Guide for Small Towns, U.S. Department of Justice – www.ada.gov/smtown.htm
- 4.
Americans with Disabilities Act Coordinator Certification Training – www.adacordinator.org
- 5.
Job Accommodation Network – askjan.org
- 6.
Kentucky Appalachian and Rural Rehabilitation Network – karrn.org
- 7.
Research and Training Center on Rural Rehabilitation – rtc.ruralinstitute.umt.edu