About 20 percent of the civilian non-institutionalized population of the United States has some type of disability ... [i]t is not sufficient that services or benefits exist; they must be accessible to individuals with disabilities ...
INTRODUCTION
One of the primary responsibilities of state and local governments is to protect residents and visitors from harm, including assistance in preparing for, responding to, and recovering from emergencies and disasters.1
This chapter looks at legal issues associated with emergency management and the obligation to individuals historically identified as vulnerable or special needs populations. The preliminary question arising is: "To whom are we referring?" Since 2011 the Federal Emergency Management Agency (FEMA) has used as its doctrinal underpinning the concept of the "whole community."2 The whole community concept recognizes:
the full spectrum of community residents and members (including but not limited to people speaking diverse languages or from diverse cultures or economic backgrounds, all ages from children and youth to seniors, people with disabilities, others with access and functional needs, and populations traditionally underrepresented in civic government).3
This chapter looks at that segment of the population with the objective of providing a general overview of the law relative to persons with disabilities and others with access and functional needs in contemplation of a possible emergency, disaster, or catastrophic event.
The phrase "children and adults (or persons) with disabilities and others with access and functional needs" is broadly inclusive. It incorporates those individuals requiring additional assistance in the event of an emergency or disaster and includes persons, both with and without disabilities, needing such assistance.4 "FEMA will work with the whole community to ensure equal access to disaster services and to meet the functional needs of all individuals without discrimination."5 This statement, from FEMA's "Strategic Plan for Fiscal Years 2014-2018," is unequivocal in its intent and in its expectations of state and local jurisdictions.
The requirements for compliance are contained in a mix of federal statutes, regulations, guidance documents, and a range of federal court decisions addressing emergency planning and vulnerable populations, the full examination of which could itself be the subject of a book. By necessity, this chapter has a more limited scope, focusing on some of the programs, services, or activities in the response mission area.6 The response phase includes those "capabilities necessary to save lives, protect property and the environment, and meet basic human needs after an incident has occurred."7
This chapter also provides an introduction to some of the legal issues presented as jurisdictions endeavor to provide integrated and nondiscriminatory emergency services to their citizens while ensuring that persons with disabilities, and others with access and functional needs, are fully considered. As will be seen, the types of accommodations required for persons with disabilities often address many of the access and functional needs of those persons without disabilities. This chapter is intended to provide state and local government officials and their lawyers with a solid understanding of emergency management requirements relative to the provision of services to vulnerable populations. It represents a starting point for the legal considerations necessary as state and local governments endeavor to prepare for, respond to, and recover from emergencies and disasters.
After defining disability and discussing the integration mandate in considering the range of support needed, this chapter will provide an overview of the expectations associated with selected aspects of the planning process: communications, special needs registries, community evacuation, transportation, consideration of service animals, pets, and emergency shelter programs. These topics will be discussed against the backdrop of the relevant federal authority providing the minimum standards that jurisdictions must meet both to provide emergency services in a nondiscriminatory manner and to meet eligibility requirements for Stafford Act reimbursement. There are some issues that re-occur in several of these topic areas. Where applicable, they will be discussed once and then incorporated by reference into the discussion of other topic areas where the issue may also arise.
An effort has been made to convey the perspectives of the applicable federal agencies and judicial decisions in order to provide a sense of the standards and expectations to which the performance of state and local actors will be held. Consideration of the needs of such vulnerable populations is a fairly new area. Relatively few court cases have looked at the specific issue of the delivery of emergency services in a disaster to those with disabilities, and none have yet addressed the broader area of access and functional needs within this context. The available cases will be examined and where necessary, the findings extrapolated to the larger population. For illustrative purposes, approaches used by jurisdictions in their efforts to respond to emergencies and disasters within a whole community framework are also presented.
DISABILITY AND THE INTEGRATION MANDATE
Almost 20 percent of the civilian non-institutionalized population of the United States has some type of disability.8 This represents approximately 56.7 million individuals.9 That number is believed to be on the low side since some types of disabilities are not always recognized or acknowledged by the individual who, therefore, does not self-identify.10 This is especially the case for later-in-life onset disabilities such as age-associated hearing loss or reduced mobility.11 Yet, the impact of the disability, for example, not hearing an emergency announcement or moving slowly when speed is imperative, is still present.
This section begins with a discussion of disability in relation to section 504 of the Rehabilitation Act and the Americans with Disabilities Act. FEMA guidelines illustrating the application of these statutes to emergency management will also be described. The section concludes with the presentation of two cases examining compliance with these statutory mandates which provide examples of the application of the "meaningful access—reasonable accommodation" standard.
The Americans with Disabilities Act (ADA) of 1990 as amended by the ADA Amendments Act of 200812 provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefit of services, programs, or activities" of a state or local government, or their agencies, or other instrumentalities.13 This legislation represents a significant expansion in disability rights. Previously, section 504 of the Rehabilitation Act of 1973 required equal access to state and local programs, services, and activities receiving federal funds.14 Title II of the ADA broadened the coverage of section 504 by requiring equal access without having to identify a federal financial connection.15 The anti-discrimination protections afforded persons with disabilities by Title II of the ADA are comparable to those contained in the Civil Rights Act of 1964, which outlawed discrimination on the basis of race, religion, sex, and national origin.16 Title II of the ADA is applicable to the extensive array of services, programs, and activities provided in the emergency management arena.17 This includes those provided by third parties (such as nonprofit or nongovernmental organizations, or faith-based groups) at the behest of a state or local government.
The relevant functional definition of disabled follows.
An individual is considered to be disabled under the ADA if they:
(A) have a physical or mental impairment substantially limiting one or more of their major life activities;
(B) have a record of having such an impairment; or
(C) are regarded as having such an impairment.18
Examples of major life activities are provided in Table 14.1. Table 14.2 provides examples of major bodily functions, the impairment of which would be considered a limitation of a major life activity.
Table 14.1 Examples of Major Life Activities19
| Caring for oneself | Performing manual tasks | Seeing |
| Hearing | Eating | Sleeping |
| Walking | Standing | Lifting |
| Bending | Speaking | Breathing |
| Learning | Reading | Concentrating |
| Thinking | Communicating | Working |
Table 14.2 Examples of Major Bodily Functions20
| Functions of the immune system | Normal cell growth | Digestive |
| Bowel | Bladder | Neurological |
| Brain | Respiratory | Circulatory |
| Endocrine | Reproductive functions |
To meet the requirement of "being regarded as having such an impairment," an individual has to be able to establish that they have been subjected to a prohibited action (under 42 U.S.C. chapter 126) because of an actual or perceived physical or mental impairment.21 In this situation, it is irrelevant whether the impairment actually limits a major life activity.22 Specifically excluded from the definition of disability are impairments that are minor or transitory.23 For purposes of this definition, transitory is defined as having an actual or expected duration of less than six months.24 Under this definition, for example a broken ankle would typically be considered as transitory, not meeting the definition of disability.25
Title II of the ADA stipulates that "[a] public entity shall administer services, programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities."26 This requires that persons with disabilities have equal access to programs, services, and activities offered by...
