Self Evaluation Plan and Transition Plan - Part 1, Why Bother?
Information presented herein can also be found at the New England Action Guide.
This is the first article in a series of articles to discuss a Self Evaluation Plan and Transition Plan (SEPTP) for your entity. The information contained within this series can be used to build a new SEPTP or audit an existing SEPTP.
ADA Logo
The History of SEPTP
The Code of Federal Regulations (CFR) is the codification of the general and permanent rules published in the Federal Register by the executive departments and agencies of the Federal government. Within the 1991 ADA laws, a Self-Evaluation Plan and Transition Plan was required only for ADA compliance at Title II public entities with more than 50 employees. Relative to the ADA, on July 26, 1990, the US Department of Justice (DOJ) issued rules implementing Title II, which is codified at 28 CFR Part 35. Title II public entities covers any State or local government; any department, agency, special purpose district, or other instrumentality of a State or States or local government; or the National Railroad Passenger Corporation, and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act), regardless of size. See 28 CFR 35.104.
In some cases it is difficult to determine whether a particular entity that is providing a public service, such as a library, museum, or volunteer fire department, is in fact a public entity (Title II). Where an entity appears to have both public and private features, it is necessary to examine the relationship between the entity and the governmental unit to determine whether the entity is public or private. Factors to be considered in this determination include --
1) Whether the entity is operated with public funds;
2) Whether the entity's employees are considered government employees;
3) Whether the entity receives significant assistance from the government by provision of property or equipment; and
4) Whether the entity is governed by an independent board selected by members of a private organization or a board elected by the voters or appointed by elected officials.
The Rehabilitation Act of 1973 preceded the ADA. Section 504 of the Rehabilitation Act covers discrimination of people with disabilities. However, Section 504 only applies to programs or activities receiving Federal financial assistance. Because many State and local government operations, such as courts, licensing, and legislative facilities and proceedings do not receive Federal funds, they are beyond the reach of Section 504. Hence the need for Title II of the ADA. So the Americans with Disabilities Act of 1991 became effective for states, local governments, businesses, and nonprofits on January 26, 1992. On this date accessibility provisions that previously only applied to programs receiving federal funding were now extended to employment, state and local government, public services offered by private entities, telecommunications, and transportation. The ADA was the first federal civil rights law that applied whether an entity has received federal funds of not.
By January 26, 1993 (within 1 year of the effective date of ADA), State and Local governments must have completed a SEPTP for all of their programs, policies, and services. Any structural modifications to facilities must have been completed by January 26, 1995. This was just to bring all the programs and facilities that existed at the time up to the level of the 1991 ADA Standards.
2010 ADA Standards for Accessible Design
When the 2010 ADA Standards were released, and according to Federal Regulation Section 35.105, a Self-Evaluation Plan and Transition Plan must have been completed by March 15, 2012 (1 year after the effective date of the 2010 Standards). This Self-Evaluation is only required for programs, policies, and services not previously evaluated for the Americans with Disabilities Act of 1990 or Section 504. Facilities must have been in compliance no later than March 15, 2014.
After this period of time, the formal requirement for a SEPTP no longer existed. However, the requirement to comply with the ADA went forward. That is where a SEPTP as a living document comes in to play. And, the concept of a SEPTP for ADA compliance can and should be extended to all entities covered by the ADA, ABA and/or FHA. These laws will be briefly described below.
Americans with Disabilities Act
The ADA laws apply to State and local government facilities and, public accommodation and commercial facilities in the private sector. There are five main titles within the ADA laws as follows:
Title I - Employment
Title II - State and local government entities.
Title III - public accommodation and commercial facilities in the private sector
Title IV - requires common carriers (telephone companies) to establish interstate and intrastate telecommunications relay services (TRS) 24 hours a day, 7 days a week. TRS is a telephone service that allows people with hearing and/or speech disabilities to place and receive telephone calls.
Title V - miscellaneous items such as smoking, retaliation, coercion, insurance underwriting, technical assistance plans for ADA, application to Congress and agencies of the Legislative branch of the federal government.
Architectural Barriers Act
The ABA applies to facilities designed, built, altered, or leased with certain federal funds. Passed in 1968, the ABA is one of the first laws to address access to the built environment. The law applies to federal buildings, including post offices, social security offices, federal courthouses and prisons, and national parks. It also covers non-federal facilities, such as public housing units and mass transit systems, built or altered with federal grants or loans.
Fair Housing Act
The FHA, applies to a wide range of entities including, but not limited to, property owners, housing managers, homeowners and condominium associations, lenders, and real estate agents. FHA coverage includes private housing, housing that receives Federal financial assistance, and State and local government housing.
Why Should Your Entity Bother to have a SEPTP?
Although a SEPTP is only required for certain Title II entities, this article is suggesting that a SEPTP is a living document every entity should have to make sure their programs and facilities comply with accessibility laws. Whether your entity is required to comply with the Americans with Disabilities Act (ADA), Architectural Barriers Act (ABA), or Fair Housing Act (FHA), it is recommended that the entity have a plan and process established, in writing, to monitor and maintain their programs and facilities for accessibility compliance.
All entities have a legal and moral obligation to comply with the accessibility laws that apply to their entity. The ADA, ABA and FHA are laws that prevent discrimination. Non-compliance is not an option. Failure to comply is against the law and subject to legal enforcement by agencies task with that responsibility. SEPTPs provide a mechanism to manage this obligation. SEPTPs can be thought of as tools to create and maintain successful accessibility compliance programs and facilities. Plus, lawsuits are miserable and expensive events to go through, unless you are a lawyer. A well designed and executed SEPTP can help avoid lawsuits. For additional information see How to Avoid ADA Lawsuits for Your Business.
Morally, compliance with disability laws is the right thing to do. Individuals living with disabilities already have enough issues to deal with in their disability, they don’t need the frustration and disrespect that comes from discrimination based on their disability.
And, if your entity is a for-profit business, complying with the accessibility laws will help you make money. See the articles at Profitability vs Accessibility and ADA and Increased Revenue. The Self-Evaluation section examines how facilities, policies, programs, and services are provided to the public. The Transition Plan section looks at physical barriers and identifies structural modifications necessary for providing physical access to programs and services. As part of the Transition Plan, entities should develop a strategy and schedule for barrier removal and/or mitigation. A well executed SEPTP will increase revenue for most for-profit businesses.
SUMMARY: SEPTP plans officially apply only to State and local government entities with more than 50 employees. But why stop there? Having a SEPTP is the legally, morally, and financially right thing to do for all entities. SEPTPs can be thought of as tools to create and maintain successful accessibility compliance programs. SEPTPs are living documents/plans that require periodic updating. It is recommended that the SEPTP be audited every three (3) years, or whenever a significant change is adopted for the ADA, or when the entity undergoes changes such as building renovations/modifications/additions, program revisions or additions, or mergers/acquisitions with other entities. The next article of this series is Part 2 - Who is in Charge?
If you need help building a new SEPTP or auditing your existing SEPTP, please call Richard Acree at 615-752-0060, or email inspections4ada@gmail.com. For additional information please see SEPTP.
…………………………………………………………………………………………………………………………………………………………………..