New York Lawsuit Highlights the Importance of Inclusive Planning for People with Disabilities & Access & Other Functional Needs
In 2012, the class of “[a]ll people with disabilities, as defined by the Americans with Disabilities Act [(ADA)] who are within the City of New York and the jurisdiction served by the City of New York’s emergency preparedness program and services” was certified in a lawsuit that proceeded against the City of New York (NYC) and Mayor Bloomberg. In the case of Brooklyn Center for Independence of the Disabled v. Bloomberg, the Plaintiffs argued that the City failed to adequately plan for people with disabilities in violation of the ADA, the Rehabilitation Act, and the New York City Human Rights Law (NYCHRL).
The CHHS blog left readers wondering if, in planning and responding to emergencies and disasters, New York City adequately addressed the needs of people with disabilities. The United States District Court for the Southern District of New York has answered: No.
To establish a violation of Title II of the ADA or Rehabilitation Act, the Plaintiffs must show that:
- The Plaintiffs are “qualified individuals” with a disability, which the court found they were;
- The Defendants are subject to the ADA or Rehabilitation Act, which the court found they were; and
- The Plaintiffs were denied the opportunity to participate in or benefit from the Defendants’ services, programs, or activities, or were otherwise discriminated against by the Defendants, by reason of their disabilities – the court found that New York City’s emergency preparedness program is a service, program, or activity within the meaning of both the ADA and Rehabilitation Act, which left the remaining question of whether the Plaintiffs were denied the opportunity to participate in or benefit from NYC’s emergency preparedness program, or if they were otherwise discriminated against by NYC, by reason of their disabilities.
Ultimately, the court concluded that New York City’s emergency preparedness program violated the ADA, the Rehabilitation Act, and the NYCHRL by failing to provide people with disabilities and access and other functional needs meaningful access to the emergency preparedness program. The failures of the program included the following matters:
- The failure of the evacuation plans to accommodate the needs of people with disabilities with respect to high-rise evacuation and accessible transportation;
- The failure of the shelter plans to require that the shelter system be sufficiently accessible – architecturally and programmatically – to accommodate people with disabilities in an emergency;
- The failure of New York City to have a plan for ensuring that people with disabilities are able to access the services provided by the City after an emergency;
- The failure of plans to provide for accessible communications;
- The failure of New York City’s outreach and education program to provide people with disabilities the same opportunity as others to develop a personal emergency plan; and
- New York City’s lack of sufficient plans to provide people with disabilities information about the existence and location of accessible services in an emergency.
This trial was limited to the question of liability. Now that liability has been established and the problems have been identified, it is time to begin developing solutions to remedy the problems in order to improve the inclusiveness of NYC’s plans, programs, and services, to enable people with disabilities and access and other functional needs to have meaningful access to New York City’s emergency preparedness program and services. At this stage in the case, options to remedy the identified problems have not been offered, besides some suggestions regarding consulting resources, such as the Department of Justice’s ADA Tool Kit. New York may, however, look to other cities that have gone through the process of making their plans and emergency preparedness programs complaint as examples for what they may need to do in order to ensure inclusiveness. An excellent example of what New York might expect the remedy to look like might be found in the case of Communities Actively Living Independent and Free (CALIF), et al., v. City of Los Angeles, et al. The facts of the case are similar to those in this case against New York, and the proposed settlement in the CALIF case outlines many steps NYC might follow to ensure inclusiveness and legal compliance.
As the remedy stage moves forward, the Plaintiffs will have a chance to propose accommodations to make NYC’s emergency preparedness program readily accessible, while ensuring the costs do not exceed the benefits. Also, the Defendants will have the opportunity to argue that the proposed accommodations are unreasonable, or that they fundamentally alter the nature of NYC’s emergency preparedness program. Due to the complexity and potential expense involved in remedying the identified problems, the court suggested involving experts and ordered that the parties meet, along with representatives of the Department of Justice, to determine the most productive means of resolving these remedy questions through alternative dispute mechanisms. This effort is forthcoming.
In the meantime, as we wait to find out what the court will require of the City of New York, emergency managers around the country may begin taking measures to ensure the inclusiveness of their plans. For example, some options to improve inclusiveness may include:
- Inviting people with disabilities and access and other functional needs to participate in the emergency planning processes (including reviewing and updating old plans, and developing new plans);
- Engaging in a plan review process that considers how best to meet the needs of people with disabilities and access and other functional needs;
- Developing new needed plans;
- Creating/assigning a planning position within the emergency management organization to advocate for people with disabilities and access and other functional needs;
- Developing an annex to jurisdictions’ emergency plans that focuses specifically on issues related to meeting the needs of people with disabilities and access and other functional needs in disasters to bolster general inclusive planning efforts, and to address related issues, including evacuation and accessible transportation, accessible public notification, and sheltering;
- Integrating issues related to planning for people with disabilities and access and other functional needs into the general emergency planning efforts of jurisdictions, as well as the jurisdictions’ plans;
- Using the U.S. Department of Justice’s (DOJ) ADA Best Practices Tool Kit for State and Local Governments (DOJ ADA Tool Kit) as a model for compliance;
- Working to ensure the accessibility of communications sent out to the community;
- Purchasing accessible equipment and resources, such as shelter supplies, as needed (e.g., accessible cots); and
- Establishing a long-term recovery working group or committee that includes roles for representatives of people with disabilities and access and other functional needs.
As notable expert in the field, June Isaacson Kailes, stated: “Disasters are always inclusive. Response and recovery are not, unless we plan for it.” There is still much to be done in order to ensure response and recovery efforts are inc
lusive; fortunately, the Nation’s emergency planners are becoming more aware of the importance of planning for the whole community, including people with disabilities and access and other functional needs.
As the recent litigation trend illustrates, inclusive planning is both critical and legally required. The outcomes of the CALIF and New York cases have proven that jurisdictions that fail to plan will be found liable and will be required to make their plans ADA and Rehabilitation Act complaint. Other jurisdictions can learn from these examples – for example, they can begin to review and implement the requirements outlined in the CALIF settlement agreement, and they can consider whether their emergency preparedness programs may face some of the same problems identified in the New York case to preemptively begin to modify their plans for ADA compliance.
The major takeaway in this case is that jurisdictions across the country should begin working to develop strategies to ensure their emergency preparedness programs, plans, planning efforts, and procedures are inclusive. If emergency planning efforts are inclusive, the Nation will be more resilient and better equipped to meet the needs of people with disabilities and access and other functional needs.
As more information becomes available, stay tuned for an update on what the court prescribes as steps New York City must take to make its emergency preparedness program accessible and compliant with the ADA, the Rehabilitation Act, and NYCHRL.
For more information about these cases, see the MEMO: Litigation RE: Planning for People with Disabilities and Access and Other Functional Needs or contact Elizabeth M. Webster at email@example.com or 410-706-5718.