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  2. Americans with Disabilities (ADA)
  3. Frequently Asked Questions (FAQs)

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Frequently Asked Questions (FAQs)

State and Local Governments

Q. Who is Protected by the ADA?

A. The ADA protects the rights of people who have a physical or mental impairment that substantially limits their ability to perform one or more major life activities, such as breathing, walking, reading, thinking, seeing, hearing, or working. It does not apply to people whose impairment is unsubstantial, such as someone who is slightly nearsighted or someone who is mildly allergic to pollen. However, it does apply to people whose disability is substantial but can be moderated or mitigated, and it also applies to people who have a record of having a substantial impairment (e.g., a person with cancer that is in remission) or are regarded as having such an impairment (e.g., a person who has scars from a severe burn).

Q. Does the ADA apply to state and local governments?

A. Title II of the ADA prohibits discrimination against qualified individuals with disabilities in all programs, activities, and services of public entities. It applies to all state and local governments, their departments and agencies, and any other instrumentalities or special purpose districts of state or local governments.

Q. How does title II affect participation in a state or local government's programs, activities, and services?

A. A state or local government must eliminate any eligibility criteria for participation in programs, activities, and services that screen out or tend to screen out persons with disabilities, unless it can establish that the requirements are necessary for the provision of the service, program, or activity. The state or local government may, however, adopt legitimate safety requirements necessary for safe operation if they are based on real risks, not on stereotypes or generalizations about individuals with disabilities. A public entity shall furnish appropriate auxiliary aids and services where necessary to afford
qualified individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity. Finally, a public entity must reasonably modify its policies, practices, or procedures to avoid discrimination. If the public entity can demonstrate that a particular modification would fundamentally alter the nature of its service, program, or activity, it is not required to make that modification.

Q. What changes must a public entity make to its existing facilities to make them accessible?

A. A public entity must ensure that individuals with disabilities are not excluded from services, programs, and activities because existing buildings are inaccessible. A state or local government’s programs, when viewed in their entirety, must be readily accessible to and usable by individuals with disabilities. This standard, known as “program accessibility”, applies to facilities of a public entity that existed on January 26, 1992. Public entities do not necessarily have to make each of their existing facilities accessible. They may provide program accessibility by a number of methods including alteration of existing facilities, acquisition or construction of additional facilities, relocation of a service or program to an accessible facility, or provision of services at alternate accessible sites.

Q. How can I request an accommodation?

A. The New Mexico courts are committed to ensuring that persons with disabilities have equal and full access to the New Mexico judicial system. Access can mean physical access to enter or move about in judicial buildings or the ability to participate fully in all programs and services. Any person who, has a physical or mental impairment that limits one or more major life activity, has a record of such an impairment or is regarded as having such an impairment may request an accommodation.

Although you can request an accommodation in any written form or orally, it is preferred that the request be made by completing a Request for Accommodations Form. Please mail the form to the court where the hearing is going to take place as soon as possible. Upon request, the form can be available in an alternative format.

The accommodation request must include the full name, address and contact information of the person making the request. If known, the request should state the date of the proceeding, the docket number and whether it is a civil or criminal matter. The request should state the nature of the disability that makes an accommodation necessary and include a suggestion as to what would be a reasonable accommodation for the disability.

Q. What is Primary Consideration?

A. Public entities are required to give primary consideration to the type of auxiliary aid or service requested by the person with the disability. They must honor that choice, unless they can demonstrate that another equally effective means of communication is available or that the aid or service requested would fundamentally alter the nature of the program, service, or activity or would result in undue financial and administrative burdens.

Q. Can a request for an Accommodation be denied?

A. Although the New Mexico Judiciary is committed to ensuring that persons with disabilities have equal and full access to the New Mexico courts, some requests for an accommodation may be denied. The ADA does not require that an accommodation be provided to someone who is not a “qualified” individual with a disability. The courts are also not required to take actions that would cause a “fundamental alteration of a program or service” or would present an “undue financial or administrative burden.” In addition, the ADA does not require the courts to provide services or devices of a personal nature, such as wheelchairs or other mobility devices, or legal representation, secretarial services and transportation.

Q. What are Reasonable Modifications of Policies and Procedures?

A. The ADA requires public entities to make “reasonable modifications” in their usual ways of doing things when necessary to accommodate people who have disabilities. Any modification that would result in a “fundamental alteration” — a change in the essential nature of the entity’s programs or services — is not required.

Q. What constitutes Effective Communication?

A. Communicating successfully is an essential part of providing service to the public. The ADA requires public entities to take the steps necessary to communicate effectively with people who have disabilities, and uses the term “auxiliary aids and services” to refer to readers, notetakers, sign language interpreters, assistive listening systems and devices, open and closed captioning, text telephones (TTYs), videophones, information provided in large print, Braille, audible, or electronic formats, and other tools for people who have communication disabilities. In addition, the regulations permit the use of newer technologies including real-time captioning (also known as computer-assisted real-time transcription, or CART) in which a transcriber types what is being said at a meeting or event into a computer that projects the words onto a screen; remote CART (which requires an audible feed and a data feed to an off-site transcriber); and video remote interpreting (VRI), a fee-based service that allows public entities that have video conferencing equipment to access a sign language interpreter off-site.

Because the nature of communications differs from program to program, the rules allow for flexibility in determining effective communication solutions. The goal is to find a practical solution that fits the circumstances, taking into consideration the nature, length, and complexity of the communication as well as the person’s normal method(s) of communication.

Q. What kinds of auxiliary aids and services are required by the ADA to ensure effective communication with individuals who are deaf/hard of hearing or who are blind/have low vision?

A. Appropriate auxiliary aids and services for individuals who are deaf or hard of hearing may include services and devices such as qualified interpreters on-site or through video remote interpreting (VRI) services; note takers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing.
Appropriate auxiliary aids and services for individuals who are blind or have low vision may include services and devices such as qualified readers; taped texts; audio recordings; Brailed materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision.

Q. Are there any limitations on the ADA's auxiliary aids requirements?

A. Yes. The ADA does not require the provision of any auxiliary aid that would result in an undue burden or in a fundamental alteration in the nature of the goods or services provided by a public accommodation. However, the public accommodation is not relieved from the duty to furnish an alternative auxiliary aid, if available, that would not result in a fundamental alteration or undue burden. Both of these limitations are derived from existing regulations and are to be determined on a case-by-case basis.

Q. What is the definition of a service animal under the ADA?

A. A service animal is any breed of dog or miniature horse that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not considered to be service animals. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping individuals with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks.

Q. What type of inquiries can be made about the use of a service animal?

A. To determine if an animal is a service animal, a public entity or a private business may ask two questions: 1) Is this animal required because of a disability? and 2) What work or task has this animal been trained to perform? These inquires may not be made if the need for the service animal is obvious (e.g., the dog is guiding an individual who is blind or is pulling a person’s wheelchair.) A public entity or private business may not ask about the nature or extent of an individual’s disability. They also may not require documentation, such as proof that the animal has been certified, trained or licensed as a service animal, or require the animal to wear an identifying vest.