Urban Lawyer

Emergency Management and Vulnerable Populations

by Angelyn Spaulding Flowers

Angela Spaulding Flowers is a Graduate Program Coordinator and Professor, Homeland Security, Co-Director, Institute for Public Safety & Justice, University of the District of Columbia; Program Director, UDC Homeland Security-STEM Program; B.A., Howard University; J.D., Georgetown University; Ph.D., Commonwealth Open University. Served as Project Director, National Legal Preparedness Training Program, a UDC-FEMA Cooperative Agreement project from 2007-2012.

“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 ARTICLE 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 article 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 article 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 article 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 article 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 article 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, 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.

I.   Disability and the Integration Mandate

Almost 20% 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, 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 §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 2008 (P.L. 110-325) provides that “. . . no qualified individual with a disability shall, by reason of such dis ability, 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.12 This legislation represents a significant expansion in disability rights. Previously, §504 of The Rehabilitation Act of 1973 required equal access to state and local programs, services, and activities receiving federal funds.13 Title II of the ADA broadened the coverage of §504 by requiring equal access without having to identify a federal financial connection.14 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.15 Title II of the ADA is applicable to the extensive array of services, programs, and activities provided in the emergency management arena.16 This includes those provided by third parties (such as non-profit or non-governmental organizations, or faith-based groups) at the behest of a state or local government.

The relevant functional definition of disabled is:

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.17

Examples of major life activities are provided in Table 1. Table 2 provides examples of major bodily functions, the impairment of which would be considered a limitation of a major life activity.

TABLE 1 - Examples of major life activities
TABLE 2 - Examples of major bodily functions
18, 19

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.20 In this situation, it is irrelevant whether the impairment actually limits a major life activity.21 Specifically excluded from the definition of disability are impairments that are minor or transitory.22 For purposes of this definition, transitory is defined as having an actual or expected duration of less than six months.23 Under this definition, for example a broken ankle would typically be considered as transitory, not meeting the definition of disability.24

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”.25 This requires that persons with disabilities have equal access to programs, services, and activities offered by state and local governments, which must be provided in the most integrated manner possible.26 As distinct from §504 of the Rehabilitation Act of 1973, which only covers programs, services, and activities receiving federal funds, Title II of the ADA applies to all activities of state and local governments whether or not federal funds are involved.27  Moreover, Title II of the ADA applies not only to programs, services, and activities directly provided by state and local governments; but, also to those provided on their behalf by third parties such as contractors, and non-governmental organizations (NGOs).28 For this reason, any references in this article to requirements imposed on states and localities, also refers to those acting on their behalf. Having the services provided by a third party does not relieve the state or local government from its obligations under Title II of the ADA. As will be illustrated below, when services are to be provided by a third party, the jurisdiction is responsible for ensuring that the required services actually are provided.

The community integration mandate, also known as “The Integration Mandate” of the ADA, was upheld in 1999 in the Supreme Court’s landmark decision in Olmstead v. L.C. ex rel. Zimring,29 which found that the unnecessary segregation of persons with disabilities is discriminatory. The Court in Olmstead attached three conditions to the mandate that public entities provide community-based services:

(1)   The services must be appropriate;

(2)   The affected persons do not oppose community-based treatment; and

(3)   Community-based services can be reasonably accommodated, considering available resources and the needs of others also receiving disability services from the entity.30

States and localities must make reasonable modifications to their policies, procedures or practices to avoid discrimination.31 The reasonable modification requirement may be excused only where it is demonstrable that modifications would “fundamentally alter” the service system.32

The mandate that community-based programs and services be provided in a nondiscriminatory integrated setting extends to programs, services, and activities related to emergencies and disasters. This includes planning for and providing programs, services, and activities in:

•  preparation

•   testing of preparedness

•   notification

•   community evacuation and transportation

•   emergency shelter programs

•   temporary lodging and housing

•   social services and emergency disaster-related programs

•   emergency medical care and services

•   relocation programs, activities and services

•   transition and transportation back to the community, post-emergency or disaster

•   emergency and disaster recovery programs, services, and activities, and

•   remediation of damage caused by the emergency or disaster.33

Several of these will be discussed below.

The United States Department of Justice (DOJ) is the ADA-designated Title II enforcement agency for state and local government functions in the areas of: public safety, law enforcement, and the administration of justice, including courts and correctional institutions; commerce and industry, including banking and finance, consumer protection, and insurance; planning, development, and regulation (unless otherwise assigned); state and local government support services; and all other government functions not assigned to other designated agencies.34 As a result, the Civil Rights Division of DOJ has developed guidance documents for ADA compliance in the area of emergency management.35

Chapter 7 of the DOJ, Civil Rights Division’s “ADA Best Practices Tool Kit for State and Local Governments” is dedicated to emergency management under the ADA.36 It addresses the issues related to: emergency management composition; ADA applicability to emergency management; common problems faced by persons with disabilities in accessing emergency and disaster related services, programs, activities, and facilities; and most important, some of the steps that can be taken by states and localities to make their programs, services, activities, and facilities accessible.37 Thus, Chapter 7 and its addendums should be used by states and localities in designing their emergency management plans. The addendums are particularly useful in their delineation of steps required for ADA compliance and in their referencing of the applicable sections of the Code of Federal Regulations (CFR).38

The Post-Katrina Emergency Management Reform Act (PKEMARA) of 2006 added disability to the list of protected classes in the Stafford Act.39 This has important implications for jurisdictions when they are applying for reimbursement under the Stafford Act. To assist jurisdictions, FEMA prepared a guidance document describing the application of protected class status in emergency planning for persons with disabilities.40  The ten key concepts of non-discrimination which must be adhered to are: self-determination, no “one size fits all,” equal opportunity, inclusion, integration, physical access, equal access, effective communication, program modification, and no charge.41 Table 3 presents the underlying principles associated with these concepts, with examples of their applicability to emergency management.42 These concepts will surface throughout the discussion in this article and are required components of any state or local emergency management effort.

TABLE 3 - Key Concepts of Non-Discrimination with
Emergency Management Application
43

It is not sufficient that services or benefits exist; they must also be accessible to individuals with disabilities.44 In interpreting §504, the Supreme Court noted in Alexander v. Choate that to assure meaningful access, reasonable accommodations may be required.45 In this instance, the inquiry centers not on the question of the availability of equal benefits to disabled persons, but rather on whether the disabled person is able to access the benefits or services to which they are legally entitled.46 In Henrietta v. Bloomberg, the Second Circuit stressed the importance of this question in its consideration.47

The plaintiff class in Henrietta was composed of indigent New York City residents suffering from AIDS and other HIV-related illnesses.48 It was alleged that because of their disability they faced unique physical hurdles in accessing public benefits and services.49 It was the responsibility of New York City’s Division of AIDS Services and Income Support (DASIS)50 to see that they were able to access those services.51 This did not happen.52 The Second Circuit upheld  the decision of the District Court that the ADA and §504 of the Rehabilitation Act had been violated.53 The significance of this case is the nature of the declaratory and injunctive relief that was granted. The City of New York was directed to enforce the DASIS law as written.54 Officials of the State of New York were found liable in their official capacity for the failure of the City of New York to make reasonable accommodations.55 The State defendants were directed to ensure that the City defendants delivered the required services.56

Both Choate and Henrietta make clear the applicability of the “meaningful access — reasonable accommodations” standard as an affirmative obligation of states and localities in regards to ensuring that persons with disabilities are able to access governmental benefits on an equal basis.57 Two federal cases have addressed this requirement within the specific context of individuals with disabilities and emergency management processes: Communities Actively Living Independent and Free (CALIF) v. City of Los Angeles and Brooklyn Center for Independence of the Disabled (B.C.I.D.) v. Bloomberg.58 These cases are discussed below. A third case has been filed before the U.S. District Court for the District of Columbia, United Spinal Ass’n v. District of Columbia,59 but as of the writing of this article it is still pending.60

II. Selected Cross-Cutting Issues

Emergency plans must address the needs of persons with disabilities and those with access and functional needs. FEMA’s National Response Framework (NFR) provides guidance for Response mission area activities.61 It includes specific authorities and best practices for managing incidents ranging from serious local incidents to large-scale terrorist attacks or catastrophic natural disasters.62 The NFR is broadly applicable, but is specifically intended to focus on the needs of those responsible for delivering and applying the response core capabilities identified in the National Preparedness Goal:63 emergency management practitioners, community leaders, and government officials.64

The NFR lists specific populations whose contributions must be integrated into preparedness efforts, and whose needs must be incorporated into planning.65 These populations include:

•          Children;

•          Individuals (children and adults) with disabilities and others with access and functional needs;

•          Individuals from religious, racial, and ethnically diverse backgrounds; and

•          Individuals with limited English proficiency.66

As with disabilities, limited English proficiency (LEP) was added to the Stafford Act list of protected classes by the PKEMARA.67 This requires that all services be provided in a manner that does not discriminate against persons with LEP.68 A discussion of the types of services that may be required by those with LEP are included in the Communications section, below.69

Prior to discussing specific response mission area programs, activities or services, it is useful to take a look at three areas which, while not in the response mission area, have a profound impact on the operation of activities in that area. These three cross-cutting matters are participation in the emergency planning process, communication, and special needs registries.

A.   Participation in the Emergency Planning Process

FEMA’s Comprehensive Preparedness Guide (CPG) 101 Developing and Maintaining Emergency Operations Plans stresses the importance of involving individuals with disabilities or specific access and functional needs, individuals with LEP, and the advocacy groups or organizations supporting these individuals in all aspects of the planning process.70 This serves a practical purpose as well. It brings to the planning process input from those most knowledgeable about their own needs. Two approaches to inclusion of persons with disabilities in the emergency planning process are discussed below. Despite the differences in approach, the consistent theme from both of these cases is that the emergency plan itself must speak to the unique needs of persons with disabilities. It cannot be silent.

As a result of settlement agreements in CALIF, before the U.S. District Court for the Central District of California, persons with a diverse range of disabilities are not only to be included in the emergency plan itself, but those with disabilities or their advocates must also be involved in the development of the emergency management plan.71 The primary issue in CALIF72 was whether the City of Los Angeles violated federal and state disability laws by failing to make appropriate provisions for persons with disabilities in their emergency preparedness plan.73 The City’s plan was in excess of 200 pages, but it did not address the unique needs of persons with disabilities.74 The court found that, while the actions of the City were facially neutral,  by failing to address those unique needs, the emergency plan placed additional burdens on persons with disabilities in violation of the ADA and §504 of the Rehabilitation Act.75 As part of the injunctive relief granted against the City of Los Angeles, the court directed the hiring of a court-identified expert and the retention of court jurisdiction, with required reporting for a period of three years.76

In B.C.I.D. on the other hand, the court declined to order the participation by persons with disabilities in the development of New York City’s emergency management plan.77 It noted that “the ADA does not mandate that the City involve people with disabilities in the formulation of its emergency preparedness program, instead, it requires only that they have meaningful access to that program.”78 Pointing to a failure by plaintiffs to allege (and demonstrate) that disabled individuals were denied an opportunity to participate in the emergency planning process while individuals without disabilities were provided that opportunity, the court did not find that individuals with disabilities were entitled to participate in the planning process.79  The court in B.C.I.D. was more concerned that the emergency plan address the needs of those with disabilities, than with what it labeled as token involvement by individuals with disabilities in the development of the plan.80 The settlement of this case, however, did include a requirement for the establishment of a Disability Community Advisory Panel to provide expertise and feedback to the City from the disability community regarding the City’s emergency plans.81

B. Communication

Communication involves the transmission of information either verbally or non-verbally. Non-verbal communication can involve writing, signs or gestures. Communication involves the message as well as the method of message transmission. Communication before, during, and after the emergency or disaster is an integral component of the emergency management process. It includes risk communication and notification, as well as communications during the course of the emergency or disaster.82

Communication covers all stages of the emergency process: pre-disaster, during, and post-disaster.83 Emergency warnings and other emergency public information communications must be understandable to all. This includes, for example, those with limited English proficiency, or persons with visual or auditory disabilities. Communications regarding all aspect of the emergency must take into consideration auditory and visual limitations, and must be provided in the relevant languages spoken in the community.84 In emergency sheltering situations, in the absence of translators in the shelter, some jurisdictions use telephone translation centers.85 In regard to individuals with LEP, it should be kept in mind that oftentimes populations are not necessarily literate in their dominant language. Thus, written communications that are in an individual’s first language may not be understandable and some sort of intermediary may still be necessary.

Culturally appropriate communications are another component of communication activities. These are considered part of FEMA’s engaged partnerships principal, one of the fundamental doctrines for the response mission area.86 Culturally-appropriate communication is different from dealing with diverse language speakers or those with limited English proficiency.87 For example, while pain is universal, the manner in which pain is perceived or expressed is a learned, culturally specific behavior.88 This could be important during the intake process at an emergency shelter.

In other situations, the messenger becomes critical in ensuring receipt of the message. This is particularly true in emergency preparedness situations and outreach education efforts. In those instances “[a] grassroots risk communication system [that] continuously delivers important messages to the community, particularly vulnerable populations, may overcome many of the communication problems that exist among this group.89 “A Guide to Enhance Grassroots Risk Communication among Low-Income Populations” is an example of practical step-by-step guidance on working with grassroots organizations to deliver critical information to low-income, and ethnic and racial minority populations before, during, and after an emergency.90 It goes without saying that participation of diverse stakeholders in the planning process facilitates identification of strategies for addressing a myriad of challenges.

It should also be kept in mind that while social media usage, along with email and other online communications play an increasingly larger part in emergency  communications,  there are approximately 60 million Americans, or almost 20% of the U.S. population, without internet access.91 More significant is that while almost one-half of the individuals without internet access are over the age of 65,92 they constitute only 14.5% of the U.S. population.93 This suggests that the elderly are disproportionately more likely to not receive internet-based messages than the general population, largely receiving their emergency messages via television or radio94. Conversely, television and radio are the media least likely to reach millennials (those born between 1980 and the mid-2000s), who rely largely on smart phone receipt of emergency alerts.95 This reinforces the importance of planning (for populations with diverse access and functional needs) and the importance of the utilization of multiple messaging modalities (i.e. television, radio, phone/ TTY, internet, cell phone, text message, etc.) sent to as many people as possible. This is already managed for those jurisdictions participating in the Integrated Public Address Warning System (IPAWS).96

C. Special Needs Registries

Special needs registries are used extensively by large numbers of jurisdictions in an effort to address planning needs for children and adults with disabilities and for others with access and functional needs occurring in an emergency.97 Individuals are able to register before an emergency, enabling first responders to use the information for evacuation or other emergency support.98 Despite their extensive use, some issues have been raised including: inclusion criteria, eligibility determinations, ownership of the list, maintenance and updating of the lists, as well as HIPAA99 privacy rules.100 There is a question as to whether the existence of the registry, and placement thereon, creates an expectation that, in the event of an emergency, individuals on the list will be evacuated or otherwise assisted.101 Some in the disability rights community object to special needs registries as placing a burden on those with disabilities and access and functional needs assistance that is not placed on other individuals, namely that of registration.102 There is also concern that many individuals (those who do not register) will be missed.103 Where established, special needs registries must be voluntary, must protect confidentiality, and must be updated as needed.104

Notwithstanding these questions and concerns, at a very practical level, jurisdictions typically have not found anything better than registries to facilitate meeting the needs of children and adults with disabilities and those with access and functional needs in an emergency. This was demonstrated during Hurricane Sandy in New York City in 2012.105 Almost one-half of the 43 residents of New York City who died as a result of Hurricane Sandy were elderly, a rate four-times their percentage of the city’s population.106 At the time Hurricane Sandy struck, New York City did not have a city-wide special needs registry.107 In Suffolk County, a suburban county of Long Island, a special needs registry was maintained by the county’s Office of Emergency Management.108 Over six-hundred individuals were on that list.109 In the days leading up to Hurricane Sandy, an average of more than six calls per registrant were made to individuals on the list and their emergency contacts.110 Suffolk County evacuated 130 residents from low-lying flood prone areas and areas where the electricity that the registrants depended111 on was in danger of being lost.112

Two examples of special needs registries, both from the State of Colorado, can be compared to illustrate differences among registries. The City of Denver invites individuals to register their emergency medical and disability information, or those of a family member, to provide advance warning of special needs or disabilities to Denver’s 911 dispatchers.113 This information is visible to dispatchers when 911 is dialed from the individual’s telephone.114 Included in the disclaimer for the online registration form is a statement that “[t]his registry is for informational purposes only. Entering data in this registry does not guarantee that a specific emergency situation will be handled in any particular order or manner.”115 The registration form informs the registrant that the medical information provided is confidential.116 It also includes a time-limited, one-year, authorization for first responders to release copies of the medical information for treatment purposes.117 This is important for HIPPA compliance.118

The Special Needs Registry for the City of Aurora, on the other hand, is expressly intended to identify individuals, not only with special medical needs, but also transportation needs.119 As with the Denver registry, the Aurora registry also relies on voluntarily reported information.120 Its purpose is to “assist the planning efforts of emergency management and other emergency planners by identifying individuals who may need special assistance or [sic] during a disaster, due to conditions affecting physical or cognitive functioning.”121 Since Aurora uses its special needs registry for a broader purpose than Denver, its disclaimer is also broader indicating that “participation in the registry does not guarantee priority response or service of any kind.”122

What both of these registries have in common is a clear statement of their purpose, privacy notification, and notification of the conditions under which medical information will be released and, most importantly, a disclaimer.

III.   Selected Response Mission Area Programs, Services, and Activities

[He] relies on a motorized wheelchair for mobility and lived in Far Rockaway [New York City] when Hurricane Sandy struck . . . he became aware of the impending hurricane on Sunday, October 28, 2012, the day before it was to make landfall . . . .

Police officers directed him to an intersection where buses were gathering to trans- port evacuees . . . although there were ‘four or five buses lined up at the intersec- tion,’ [he] could not get on any of them because they were too crowded for . . . his wheelchair. A bus driver told him that more buses would be arriving within ten to fifteen minutes. [He] waited outside for twenty minutes, but no more buses came. He could not stay outside for any longer because it was raining, and he feared that his motorized wheelchair would short out in the rain.

The following day, [he] called 311 in an attempt to get evacuation assistance. . . .He testified that although he began calling at 12:30 p.m., he could not get through until 4:00 p.m.      The 311 operator informed [him] that he would be put ‘on alist’ but that he would ‘have to wait’. Nobody ever came to assist him. That evening, flood waters began to fill [his] first-floor apartment, and [he] was scared that he ‘was going to drown.’ With the water ‘so high’ that his ‘head was almost to the ceil- ing,’ [he] began ‘banging on the ceiling, hoping that the neighbors would hear’ him. They did—and were able to break a window into his apartment, swim inside, and rescue him.
(Declaration of a Hurricane Sandy survivor).123

This section looks at the legal requirements associated with serving persons with disabilities and others with access and functional needs in two response mission area activities: community evacuation and transportation, and emergency shelter programs. Because it is implicated in both of these areas, this Section also incorporates a discussion of the requirements associated with service animals.

A.   Community Evacuation and Transportation

Evacuations must include and integrate individuals with disabilities and others with access and functional needs: those from religious, racial, and ethnically diverse communities; individuals with LEP, as well as those with household pets and service animals.124 Evacuation planning therefore must take into consideration the needs of this diverse population. With the exception of persons with disabilities and others with certain access and functional needs, the primary concern in this area, from the perspective of the locality, is providing notification regarding “what to do,” “when to do it,” and “where to go.”125 This was discussed above in “Communications.”126 For jurisdictions with economically disadvantaged communities, planning must incorporate the fact that some individuals do not own cars, creating a functional need for transportation assistance such as buses. Persons with disabilities, however may lack the ability to comply with evacuation directives without some type of modification or additional planning considerations.

Individuals with disabilities can have physical, visual, auditory, mental, or cognitive limitations. Evacuation plans must take into consideration that those with disabilities may require additional time, consideration, and assistance enabling them to both be adequately notified and to safely evacuate. Individuals with disabilities must also be able to bring with them their special equipment, such as wheelchairs, dialysis machines, ventilators, etc., as well as service/ guide animals.127 The order to evacuate is required to be provided in a comprehensible format, as previously discussed.128 This Section will examine the legal requirements associated with evacuation and transportation of persons with disabilities.

To aid in the effectiveness of the community evacuation and transportation process, the ADA Best Practices Tool Kit129 recommends the creation and use of special needs registries.130 Accessible modes of transportation must be identified that will be available to assist in the evacuation during an emergency of individuals with disabilities.131 These accessible modes of transportation can include: “wheelchair lift-equipped school buses, transit buses, paratransit vans, and taxis.”132 When contracting with third parties to provide transportation, jurisdictions should stipulate in their contracts the requirement that accessible modes of transportation be provided.133 Service animals must be transported with their owners.134

Also to be incorporated into planning is the fact that many individuals will require assistance in getting from their homes to the emergency transportation pickup site. The State of California’s Department of Transportation produced a “Transit Emergency Planning Guide” with accompanying technical appendices.135 Containing a synthesis of industry best-practices for transit emergency preparedness, prevention, response, and recovery, it is an example of one approach to addressing the practical aspects of complying with the legal requirements for evacuation and transportation of persons with disabilities and others with access and functional needs.136 It also posits a series of questions recommended for consideration when developing evacuation and transportation plans.137

The City of New York does not provide transportation to emergency shelters rather, individuals are expected to get there on their own using public transportation.138 Most of the City’s extensive public transportation system is inaccessible to persons with disabilities, even under non-emergency conditions.139 Less than 20% of the subway system is accessible and public buses have two seats that can accommodate wheelchairs, but during an emergency the buses may be too full to accommodate wheelchairs.140 Due to the inaccessibility of the City’s public transportation system, persons with disabilities disproportionately rely on paratransit services.141 These services are provided by a state-chartered public corporation: the Metropolitan Transit Authority.142 Rides must typically be reserved at least twenty-four hours in advance.143 New York City directs persons with disabilities to use paratransit in emergencies, but there were no provisions to waive the twenty-four reservation requirement.144 For that matter, there were no provisions to insure that paratransit be available in an emergency.145

B.C.I.D. examined the provision of emergency services to persons with disabilities and specifically looked at New York City’s performance during Hurricane Sandy.146 The court found that the evacuation plan for the City of New York failed to accommodate the needs of persons with disabilities in regards to evacuation and accessible transportation.147 Paratransit services shut down almost immediately after the issuance of the evacuation order, while subway and bus service continued in some instances up to eight hours after the order was issued.148 The court record was replete with testimony of persons with disabilities who waited for para-transportation that never arrived, or buses that were too full to accommodate a wheelchair. As part of the settlement agreement in this case, the City of New York is to work with the Metropolitan Transit Authority, the Taxi and Limousine Commission, and the New York City Housing Authority to collaboratively develop accessible transportation plans for pre-storm or forewarned evacuations.149 In addition, the City will develop plans for the effective deployment of accessible vehicles during emergencies.150

While not included as a task in the response mission area, it should be kept in mind that if transportation is provided to individuals with disabilities to enable them to exit an area, then transportation will also be required for their subsequent re-entry.151

B.   Service Animals

Following Hurricane Katrina, the Pets Evacuation and Transportation Standards (PETS) Act152 was adopted. It amends the Stafford Act by requiring that state and local preparedness plans address the needs of individuals with household pets and service animals prior to, during, and following a major disaster or emergency.153 The relevant section of this act pertains to service animals and it requires that service animals must accompany their owners during evacuation and remain with them in the emergency shelter.154 Service animals are to be co-mingled in the general population shelter.155 Co-mingled animals are those that share the same living area with people in general population shelters.156 Co-mingled is distinct from co-located.157 Co- location is where pet shelters are located next to or near the general population shelters.158 With co-location, animals and people do not share the same living space.159 Household pets can be co-located, but are not co-mingled.160 Service animals must be co-mingled.161

The definition of what constitutes a service animal continues to be debated with some arguing for the inclusion of non-traditional animals in that definition.162 For purposes of Title II of the ADA,163 a service animal is defined as a “dog that is individually trained to do work or perform tasks for people with disabilities.”164 This definition is more limited than both the definition of “assistance animal” under the Fair Housing Act and the definition of “service animal” under the Air Carrier Access Act.165 This definition may also be more limited than some state or local definitions.166 States and localities may use their more expansive definition of service animals, however, only costs for service animals meeting the ADA definition are eligible for reimbursement under the Stafford Act.167 The expenses associated with meeting local requirements applicable to non-ADA conforming service animals will have to be fully absorbed by the state or locality.168

The type of work performed by a service animal can include guiding those who are blind, alerting individuals who are deaf, pulling a wheelchair, alerting and protecting those who have seizures, reminding a person with a mental illness to take their medications, calming  a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack, or other duties.169 Dogs whose sole function is to provide emotional support or comfort do not qualify as service animals under the ADA, but HUD includes them in its definitions under the Fair Housing Act.170 One example of a service animal is a chihuahua whose owner suffers from Crohn’s Disease and life-threatening allergies. The dog is not only trained to smell substances that are toxic to its owner and alert its owner, but the chihuahua is also trained to dial 911 on its owner’s mini-iPad if its owner has a seizure.171

Just as an individual’s disability is not always obvious, the nature of a service dog’s work is not always obvious either. In circumstances where it is not obvious what services an animal provides, limited staff inquiries are permitted:172

Permissible Inquiries:

(1)   “Is the dog a service animal required because of a disability”: or

(2)   “What work or task has the dog been trained to perform.”173

Impermissible Inquiries/ Actions:

(1)   Ask about the individual’s disability;

(2)   Require medical documentation of the disability;

(3)   Require a special identification card or training documentation for the dog; or

(4)   Ask that the dog demonstrate its ability to perform the task or work.174

A service animal must also be under the control of its owner.175 This typically means the service animal must be on a harness, leash, or tether unless those devices either interfere with the service animal’s work or with the individual’s disability.176 In those instances, the individual must maintain effective control of the service animal through voice, signals, or other methods.177

The one exception to the definition of a service animal only as a dog, is that in some instances miniature horses are permitted under the ADA.178 Miniature horses are generally between 24 and 36 inches in height and weigh between 70 and 100 pounds. Where service dogs are an absolute mandate, miniature horses are permitted where reasonable.179 There are four assessment factors to assist shelter providers in determining whether miniature horses can reasonably be accommodated in their facility:

(1)   Is the miniature horse housebroken;

(2)   Is the miniature horse under the owner’s control;

(3)   Can the facility accommodate the miniature horse’s type, size, and weight; and

(4)   Will the presence of the miniature horse compromise the legitimate safety requirements necessary for the safe operation of the facility.180

C.   Emergency Shelter Programs

Historically, resource gaps have existed in planning for and meeting access and functional needs in general population shelters. Many times this has resulted in disparate treatment and the denial of full and equal services. The intent of this planning guidance is to ensure that individuals are not turned away from general population shelters and inappropriately placed in other environments (e.g., “special needs” shelters, institutions, nursing homes, and hotels and motels disconnected from other support services). Addressing these gaps benefits the entire community and maximizes resources.181

In the past, persons with disabilities were often placed in “special needs” shelters or medical shelters. That is directly contradictory to the integration mandate of the ADA as upheld in the Olmstead deci sion.182 Children and adults with disabilities have the same right to services in general population shelters as those without disabilities.183 The ADA requires that emergency shelters be accessible.184 This involves the elimination of barriers to those with mobility, visual, or hearing disabilities.185 As a practical matter, shelters placed in buildings built after 1992 are going to have fewer barriers to accessibility.186 Areas that must be accessible include: drop-off areas, parking, walkways, hallways, toilets, etc.187 Stairs can present a barrier to those with mobility impairments.188 Hallways and doorways must be wide enough to allow wheelchair navigation.189 Overhead hanging objects can be a hazard to those with low vision or blindness. Auditory emergency alarms, such as fire alarms, can be undetectable to those with hearing disabilities. These are just a few examples of the types of barriers that can interfere with the ability of persons with disabilities as they attempt to utilize emergency shelters.

The Americans with Disabilities Act: ADA Checklist for Emergency Shelters is a technical assistance document intended to provide informal guidance to individuals and entities with responsibilities under the ADA.190 This checklist is issued pursuant to ADA authorization to the DOJ to provide this type of technical assistance.191 It is not intended, however, to constitute an authoritative legal interpretation of the ADA.192 As a practical matter, the “ADA Checklist for Emergency Shelters” is very useful for states and localities in that it disaggregates the steps for accessibility compliance. The disclaimer at the beginning of this article indicates that it does not constitute a legal interpretation of the ADA.193 But, following the checklist can be viewed as a good faith effort to meet the accessibility requirements of the ADA in regards to emergency shelters.

Shelters must not only be architecturally accessible, but they must also be programmatically accessible. Emergency shelters are required to provide the support and auxiliary services that would enable an individual with disabilities to maintain their independence in the emergency shelter.194 Examples of disabilities and associated auxiliary aids and services are presented in Table 4 below. Many of these associated auxiliary aids and services have been mentioned in other sections of this article. Table 4 illustrates their applicability in the emergency sheltering area.195

TABLE 4 - Examples of Disabilities with Associated Auxiliary
Aids and Services
196

To provide guidance in assisting jurisdictions in meeting the needs of persons with disabilities as well as others with access and functional needs in their general population shelters, FEMA developed the Guidance on Planning for Integration of Functional Needs Support Services in General Population Shelters.197 Persons requiring Functional Needs Support Services (FNSS) may have physical, sensory, mental health, cognitive, or intellectual disabilities that affect their ability to function independently without assistance.198 Individuals requiring functional needs support services include: children and adults with physical, sensory, mental health, or cognitive disabilities; pregnant women; the elderly; and people requiring bariatric equipment.199 FNSS are: reasonable modification to policies, practices, and procedures; durable medical equipment (DME); consumable medical supplies (CMS); personal assistance services (PAS); and other goods and services as needed.200 FNSS enable an individual “to maintain their independence in a general population shelter.”201

Examples of reasonable modifications to policies, practices, and procedures that emergency managers and shelter operators are typically required to make include:

•   modifying a “no pets” policy to permit service animals since, under the ADA, service animals are not considered pets;

•   modifying kitchen access policies to permit access for those whose disabilities require immediate access to food to avoid harmful health consequences, such as individuals with diabetes; and

•   modifying sleeping arrangements to accommodate individuals whose disability may require adjustments to the standard sleeping cot or its standard positioning.202

Descriptions of DME, CMS, and PAS are provided in Table 5.

TABLE 5 - Description of DME, CMS, and PAS.203

Approaches to emergency sheltering vary by jurisdiction.204 Some jurisdictions operate their own emergency shelters; others contract with NGOs like the American Red Cross, to provide their emergency shelters.205 Regardless of the provider, if the emergency shelters are provided at the behest of the state or local government they are required to conform to all Title II requirements, especially the directive that programs, services and activities be provided in a nondiscriminatory manner.206 The descriptions of the requirement of the integration mandate and key concepts of nondiscrimination presented in Table 3 are also applicable in the provision of emergency sheltering.207

When Hurricane Sandy struck, New York City used a scalable modular shelter system expandable up to a total of sixty-five shelters.208 Five to ten shelters were clustered around one evacuation center, typically with one shelter co-located with the evacuation center.209 In the event of an evacuation, individuals report to an evacuation center for intake.210 Following intake, if not directed to the co-located shelter, individuals are transported to one of the other shelters in that cluster, or they are transported to a special medical needs shelter (SMNS)211 or a hospital.212

The court found in B.C.I.D., however, that the City’s plan was silent as to the architectural accessibility of its shelter system.213 To compound the situation, there was evidence indicating that the City was aware that the majority of its shelters were not accessible.214 In the absence of ADA architectural accessibility compliance, the City stated it relied on a “usability” approach.215 For example, a temporary ramp may allow an individual in a wheelchair to enter a building, although it is not compliant with ADA requirements. However, the court found that some shelters did not even meet the “usability” standard.216 More importantly, the court found nothing in the City’s emergency plan that required or even defined “usability.”217

Many shelters were also found to lack the auxiliary aids described, in Table 4 above, thereby restricting the ability of persons with disabilities, or those with functional needs to effectively communicate.218 As part of its personal preparedness campaign, the City warned residents to bring their medications, as well as medical supplies such as oxygen, wheelchairs, etc., because they would not be available in the shelters.219 Residents were warned that there would be no refrigeration for medications.220 It was found however, that these warnings operated to discourage persons with disabilities from even going to shelters.221 This is not to suggest that jurisdictions should refrain from conducting personal preparedness campaigns. But the message should be constructed in such a way as to not operate to discourage individuals from utilizing emergency shelters when necessary.

The court found that the City had contracts to obtain some medical supplies, but that it did not have contracts to obtain all the medical equipment that might reasonably be expected to be required.222 The key is “reasonably expected.”223 The court in B.C.I.D. made clear that as part of the development of an emergency management plan, certain needs are expected to be anticipated.224 It was found that the City’s shelter plans failed to require that the shelter system be sufficiently accessible, both architecturally and programmatically, to accommodate persons with disabilities in an emergency.225

The emergency plan for the City of Los Angeles included over 200 shelter sites.226 Most of its sites had never been evaluated for ADA compliance.227 In 2008, the City’s Department on Disability found the City to be out of compliance with the ADA and made a series   of recommendations for attaining compliance.228 With the exception of a few limited site assessments, none of the recommendations were acted upon.229 As a practical matter, in the event of an emergency, disabled residents of Los Angeles had no way to know if a shelter was accessible. The City’s plan called for Los Angeles, in the midst of a disaster or emergency, to provide ad hoc reasonable accommodations, as necessary, upon request.230 The court found this approach placed burdens on the City’s disabled residents that were not placed on its non-disabled residents.231 In CALIF, the City of Los Angeles argued that the American Red Cross was responsible for shelter and care of persons with disabilities in the event of an emergency.232 However, the court found no record of an agreement to this effect.233 This suggests the importance for state and local jurisdictions to specifically stipulate in all contracts the conditions for compliance with accessibility and accommodation requirements.

In conclusion to a discussion of emergency shelter programs, it is important to remember that post-disaster re-entry planning must take into consideration the fact that additional time may be required for persons with disabilities and others with access and functional needs to find housing.234

IV.  Conclusion

This article has provided an overview of selected legal issues that may arise for states and localities in the provision of services in an emergency or disaster to persons with disabilities and others with access and functional needs. Salient points are listed below.

•   Persons with disabilities may be involved in the development of a jurisdiction’s emergency management plan, but they must be included in the plan and their unique needs must be addressed.

•   All communication from educational outreach, to notification, pre-disaster, during, and post-disaster, must be accessible and understandable to all regardless of their disability or access or functional need including but not limited to age, limited English proficiency, etc.

•   Special needs registries (although controversial), when properly developed and used can assist in planning for the needs of persons with disabilities and others with access and functional needs in the event of an emergency.

•   The unique transportation needs of those with disabilities as well as those with access and functional needs must be incorporated into a jurisdiction’s emergency plan.

•   Service animals must be evacuated and sheltered with their owner. Stafford Act reimbursement is limited to dogs and in some cases miniature horses.

•   Persons with disabilities are to be accommodated in general population shelters.

•   General population shelters are to provide the necessary auxiliary aids and services to enable those with disabilities to be as independent as possible.

•   Functional needs support services, including reasonable modifications to policies, practices, and procedures, as well as provision of durable medical supplies, consumable medical supplies, and personal assistance services, are to be provided to enable those with disabilities and others with access and functional needs to assist in maintaining their independence in the general population shelters.

•   Contracting with third parties to provide services does not absolve the jurisdiction from liability, for ADA non-compliance, if the services are not provided.

•   Responsibility flows upward, so states can potentially be held responsible for the failure of their localities to comply with §504 of the Rehabilitation Act and the ADA in the context of the provisions of emergency services.

Emergency plans are required to address the unique needs of individuals with disabilities. The courts have viewed this essentially as   a planning issue. Section 504 of the Rehabilitation Act and Title II   of the ADA have been construed as requiring that jurisdictions plan and anticipate the unique needs of persons with disabilities. As of the writing of this article relatively few court cases have addressed §504 of the Rehabilitation Act and the ADA within the context of emergency management activities. There is a longer court record construing these statutes in non-emergency instances for comparison. Presented with non-compliance, courts have not been hesitant in prescribing remedial action. Less well established and of more recent origin is the “whole community” framework specifically incorporating “others with access and functional needs.” Found in FEMA doctrines, and guidelines, is typically the second part of the phrase “persons with disabilities and others with access and functional needs.” As a practical matter, when a jurisdiction engages in the type of planning process that identifies and incorporates the unique needs of persons with disabilities it is also engaging in a planning process that is designed to meet the needs of the “whole community.”

Entity:
Topic:
  1. CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, CHAPTER 7: EMERGENCY MANAGEMENT UNDER TITLE II OF THE ADA 1 (2007) [hereinafter EMERGENCY MANAGEMENT UNDER TITLE II], http://www.ada.gov/pcatoolkit/chap7emergencymgmt.pdf.
  2. This concept was first announced in the FEMA Strategic Plan Fiscal Years 2011–2014 and subsequently reiterated in the FEMA Strategic Plan Fiscal Years 2014–2018, and The FEMA Administrator’s Intent Priorities Fiscal Years 2015–2019. See infra notes 3, 5.
  3. FED. EMERGENCY MGMT. AGENCY, FEMA STRATEGIC PLAN FISCAL YEARS 2011-2014, at 9 (2011) [hereinafter FISCAL YEARS 2011-2014].
  4. REG’L CATASTROPHIC PLANNING TEAM, ILL. IND. WIS. CSA, ACCESS AND FUNCTIONAL NEEDS (AFN): EMERGENCY PREPAREDNESS RESOURCE GUIDE 1, 3.
  5. FED. EMERGENCY MGMT. AGENCY, FEMA STRATEGIC PLAN FISCAL YEARS 2014-2018, at 8 (2014).
  6. Barack Obama, Presidential Policy Directive/PPD-8: National Preparedness, U.S. DEP’T HOMELAND SECURITY (Sep. 23, 2015), https://www.dhs.gov/presidential-policy-directive-8-national-preparedness (identifying five mission areas: prevention, protection, mitigation, response, and recovery).
  7. Id.
  8. See MATTHEW W. BRAULT, U.S. CENSUS BUREAU, AMERICANS WITH DISABILITIES: 2010, at 1, 4 (2012), http://www.census.gov/prod/2012pubs/p70-131.pdf.
  9. Id.
  10. Id.
  11. Id.
  12. 42 U.S.C. § 12132.
  13. See CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, A GUIDE TO DISABILITY LAWS (2009), http://www.ada.gov/cguide.htm#anchor65610.
  14. See CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, TITLE II HIGHLIGHTS (2002) [hereinafter TITLE II HIGHLIGHTS], http://www.ada.gov/t2hlt95.htm.
  15. Civil Rights Act of 1964, NAT’L PARKS SERV., https://www.nps.gov/subjects/ civilrights/1964-civil-rights-act.htm.
  16. See TITLE II HIGHLIGHTS, supra note 14.
  17. 42 U.S.C. § 12102(1).
  18. See id. § 12102(2)(A).
  19. See id. § 12102(2)(B).
  20. Id. § 12102(3)(A).
  21. Id.
  22. Id. § 12102(3)(B).
  23. Id.
  24. A broken ankle, as a transitory impairment, would not meet the ADA definition of disability. See id. However, in the event of an emergency or disaster, the individual with a broken ankle would be considered to have a mobility impairment. This would present as a functional need. See FISCAL YEARS 2011-2014, supra note 3, at 9, 17.
  25. 28 C.F.R. § 35.130(d).
  26. Id.
  27. See TITLE II HIGHLIGHTS, supra note 14.
  28. See id.
  29. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 583 (1999).
  30. Id. at 585.
  31. See TITLE II HIGHLIGHTS, supra note 14.
  32. Id.; see also 42 U.S.C. §12132.
  33. EMERGENCY MANAGEMENT UNDER TITLE II, supra note 1, at 1.
  34. See TITLE II HIGHLIGHTS, supra note 14.
  35. Id.
  36. EMERGENCY MANAGEMENT UNDER TITLE II, supra note 1.
  37. Id.; see also TITLE II HIGHLIGHTS, supra note 14.
  38. See CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, CHAPTER 7 ADDENDUM 1: TITLE II CHECKLIST (EMERGENCY MANAGEMENT) (2007), http://www.ada.gov/pcatoolkit/chap7emergencymgmtadd1.pdf; CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, CHAPTER 7 ADDENDUM 2: THE ADA AND EMERGENCY SHELTERS: ACCESS FOR ALL IN EMERGENCIES AND DISASTERS (2007) [hereinafter CHAPTER 7: ADDENDUM 2] http://www.ada.gov/ pcatoolkit/chap7shelterprog.pdf; CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, CHAPTER 7 ADDENDUM 3: ADA CHECKLIST FOR EMERGENCY SHELTERS (2007) [hereinafter CHAPTER 7: ADDENDUM 3], http://www.ada.gov/pcatoolkit/chap7shelterchk.pdf.
  39. Robert T. Stafford Disaster Relief and Emergency Assistance Act § 308, 42 U.S.C. 5151, amended by Post-Katrina Emergency Reform Act of 2006, Pub. L. No 109-295, § 698a, 120 Stat. 1449 (2006). The protected classes in the Stafford Act, as amended are “race, color, religion, nationality, sex, age, disability, English proficiency, [and] economic status.” Id.
  40. Press Release, Fed. Emergency Mgmt. Agency, Accommodating Individuals with Disabilities in the Provision of Disaster Mass Care, Housing and Human Services (Aug. 21, 2007), http://www.fema.gov/news-release/2007/08/21/accommodating-people- disabilities-disasters-reference-guide-federal-law (“The development and publication of the Reference Guide is the first step in meeting the requirement of Section 689 of the Post-Katrina Emergency Management Reform Act of 2006 . . . to develop disability related guidelines for use by those serving individuals with disabilities in emergency preparedness and disaster relief.”).
  41. FED. EMERGENCY MGMT. AGENCY, ACCOMMODATING INDIVIDUALS WITH DISABILITIES IN THE PROVISION OF DISASTER MASS CARE, HOUSING, AND HUMAN SERVICES: REFERENCE GUIDE 7-8 (2007) [hereinafter REFERENCE GUIDE].
  42. See id.; see also TITLE II HIGHLIGHTS, supra note 14.
  43. REFERENCE GUIDE, supra note 41; see also TITLE II HIGHLIGHTS, supra note 14.
  44. See U.S. EQUAL EMP’T OPPORTUNITY COMM’N, CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, AMERICANS WITH DISABILITIES ACT: QUESTIONS AND ANSWERS (2002).
  45. Alexander v. Choate, 469 U.S. 287, 301 (1985).
  46. Id. at 301. In this case, respondents alleged that the State of Tennessee’s reduction of Medicaid funded inpatient annual hospital days from 20 to 14 would have a disproportionate impact on the disabled, because they tended to have longer hospital stays, and was therefore discriminatory under §504 of The Rehabilitation Act. The court found that Tennessee’s Medicaid statue was facially neutral. The court emphasized that the benefit in question was 14 days of inpatient hospital coverage, not “adequate health care”; and that the coverage was equally accessible to the disabled as well as the non-disabled. Id.
  47. Id.; see also Henrietta v. Bloomberg, 331 F.3d 261, 273 (2d Cir. 2003). Choate was pre-ADA, relying exclusively on interpretation of §504 of The Rehabilitation Act, while Henrietta was post-ADA, and relied on both statutes with their supporting regulations. But in Henrietta, the Second Circuit considered both §504 and the ADA as imposing the same requirements and hence considered them together.
  48. Henrietta, 331 F.3d at 273.
  49. Id.
  50. Henrietta v. Giuliani, 119 F. Supp. 2d 181, 190 (E.D.N.Y. 2000). The sole function of DASIS was to assist individuals with HIV-related diseases to obtain public assistance benefit and services.
  51. Id.
  52. Henrietta v. Bloomberg, 331 F.3d at 279.
  53. Id. at 284-91 (reiterating the distinction between the necessity for “reasonable accommodations” and “disparate impact” and noting New York’s claim that it’s public benefit system was so broken that the disabled were no more disadvantaged than the non-disabled indicated the irrelevancy of that issue to the requirement of reasonable accommodations).
  54. Id. at 289-90.
  55. Id. at 284-91.
  56. Id.
  57. Id.; Alexander v. Choate, 469 U.S. 287 (1985).
  58. Cmtys. Actively Living Indep. & Free v. City of Los Angeles, No. CV 09-0287 CBM (RZx), 2011 U.S. Dist. LEXIS 1118364 (C.D. Cal. Feb. 10, 2011); Brooklyn Ctr. for Indep. of the Disabled v. Bloomberg, 980 F. Supp. 2d 588, 606-57 (S.D.N.Y. 2013).
  59. Joint Motion for Referral to Mediation and Stay of Litigation, United Spinal Ass’n v. District of Columbia, No. 1:14-cv-01528-CKK, (D.D.C. filed Sept. 9, 2014) (challenging the City’s emergency plan, among other things, based on the absence of accessible evacuation option, failure to plan for emergency communications to those who are deaf and blind, failure to publicize information about accessible emergency shelters, and failure to plan for supply chain disruptions for medication and replacement durable medical equipment).
  60. Id.
  61. U.S. DEP’T OF HOMELAND SEC., NATIONAL RESPONSE FRAMEWORK (2d ed. 2013) [hereinafter NATIONAL RESPONSE FRAMEWORK], http://www.fema.gov/media-library-data/20130726-1914-25045-1246/final_national_response_framework_20130501.pdf.
  62. Id.
  63. Federal Emergency Management Agency, The National Preparedness Goal, DEPT. OF HOMELAND SECURITY: FEDERAL EMERGENCY MANAGEMENT AGENCY (2015), https://www.fema.gov/national-preparedness-goal (updated Oct. 2, 11:02 AM) (last visited May 17, 2016) (providing for “[a] secure and resilient nation with the capabilities required across the whole community to prevent, protect against, mitigate, respond to, and recover from the threats and hazards that pose the greatest risk.”)
  64. See Lesson 1: Emergency Management History and Principles, FED. EMERGENCY MGMT. AGENCY, https://emilms.fema.gov/is1a/EMOPsummary.htm (last visited May 17, 2016).
  65. Id.
  66. NATIONAL RESPONSE FRAMEWORK, supra note 61, at 4. These categories can be compared to the protected classes listed in the Stafford Act with the exception of the addition of “others with access and functional needs”. Compare id. with 42 U.S.C. 5151.
  67. Supra note 39.
  68. See id.
  69. See infra Part II.B.
  70. FED. EMERGENCY MGMT. AGENCY, DEVELOPING AND MAINTAINING EMERGENCY OPERATIONS PLANS: COMPREHENSIVE PREPAREDNESS GUIDE (CPG) 101 VERSION 2.0 (2010) [hereinafter DEVELOPING AND MAINTAINING EMERGENCY OPERATIONS PLANS], http://www.fema.gov/media-library-data/20130726-1828-25045-0014/cpg_101_comprehensive_preparedness_guide_developing_and_maintaining_emergency_operations_plans_2010.pdf.
  71. Cmtys. Actively Living Indep. & Free v. City of Los Angeles, No. CV 09-0287 CBM (RZx), 2011 U.S. Dist. LEXIS 1118364 (C.D. Cal. Feb. 10, 2011) (ruling that the City of Los Angeles failed to meet the needs of its residents with vision, hearing, mobility, mental, and cognitive disorders by denying them equal access to the benefits of the city’s emergency preparedness program; the city’s efforts to meet the requirement of reasonable accommodations through the provision ad hoc accommodations upon request was deemed insufficient).
  72. Id.
  73. Id. at *2.
  74. Id.
  75. Id. at *1.
  76. Order re Injunctive Relief, Cmtys. Actively Living Indep. & Free v. City of Los Angeles, No. CV 09-0287 CBM (RZx), 2011 U.S. Dist. LEXIS 1118364 (C.D. Cal. Feb. 10, 2011) (signed Nov. 9, 2011).
  77. Brooklyn Ctr. for Indep. of the Disabled v. Bloomberg, 980 F. Supp. 2d 588, 606-58. (S.D.N.Y. 2013).
  78. Id. at 657.
  79. Id.
  80. Id.
  81. Stipulation of Settlement and [Proposed] Remedial Order, Brooklyn Ctr. for Indep. of the Disabled v. De Blasio, 980 F. Supp. 2d 588 (S.D.N.Y. 2013), 11 Civ. 6690 ( JMF)(FM). (Since the filing of this lawsuit, the Mayor of New York City had changed from Michael Bloomberg, to Bill De Blasio). The settlement agreement in B.C.I.D. also stipulated that the City of New York would (1) hire a Disability and Access and Functional Needs Coordinator, (2) have a minimum of 60 physically and programmatically accessible emergency shelters distributed throughout all five boroughs, which are able to accommodate 120,00 persons with disabilities (by end of September 2017), (3) create a Post-Emergency Canvassing Operation (PECO), (4) collaboratively develop accessible transportation plans for pre-storm evacuations, as well as plans for effective deployment of accessible vehicles during emergencies (in place by August 2017), and (5) establish NYC/ADA High Rise Building Evacuation Task Force, allowing for one year to develop the plan addressing the court identified deficiencies and three years to implement.
  82. See Disaster Emergency Communications, FED. EMERGENCY MGMT. AGENCY, https://www.fema.gov/disaster-emergency-communications (last updated Mar. 23, 2016, 8:50 PM).
  83. Id.
  84. NATIONAL RESPONSE FRAMEWORK, supra note 61, at 6-7.
  85. See Press Release, Fed. Emergency Mgmt. Agency, Accommodating People with Disabilities in Disasters: A Reference Guide to Federal Law (Aug. 21, 2007), http://www.fema.gov/news-release/2007/08/21/accommodating-people-disabilities-disasters- reference-guide-federal-law.
  86. NATIONAL RESPONSE FRAMEWORK, supra note 61, at 5-6, 21.
  87. See id.
  88. U.S. Dep’t of Health & Human Servs., Cultural and Linguistic Competency in Disaster Preparedness and Response Fact Sheet, PUB. HEALTH EMERGENCY: PUB. HEALTH & MED. EMERGENCY SUPPORT FOR A NATION PREPARED, http://www.phe.gov/Preparedness/planning/abc/Pages/linguistic-facts.aspx.
  89. RANDY ROWEL, ET AL., MORGAN STATE UNIV., A GUIDE TO ENHANCE GRASSROOTS RISK COMMUNICATION AMONG LOW-INCOME POPULATIONS 5 (2009), http://serve.mt.gov/wp-content/uploads/2010/10/A-Guide-to-Enhance-Risk-Communication-Among-Low-Income-Populations.pdf. (Funded by the Maryland State Department of Health and Mental Hygiene.).
  90. Id.
  91. See State and Country Quick Facts, U.S. CENSUS BUREAU, http://quickfacts.census.gov/qfd/states/00000.html (last visited May 29, 2016); see also Kaitlin Roberts, How the Digital Divide Hurts the Elderly in Times of Crisis, THE WEEK (May 30, 2014), http://theweek.com/articles/446507/how-digital-divide-hurts-elderly-times-crisis.
  92. Roberts, supra note 91.
  93. Id.
  94. See id.
  95. See id.
  96. Integrated Public Alert & Warning System, FED. EMERGENCY MGMT. AGENCY, https://www.fema.gov/integrated-public-alert-warning-system (last updated Feb. 18, 2016).
  97. See, e.g., City of Aurora Special Needs Registration, AURORA OFF. EMERGENCY MGMT., https://www.auroragov.org/cs/groups/public/documents/digitalmedia/002275.pdf (last visited May 29, 2016).
  98. See id.
  99. See SPECIAL NEEDS REGISTRIES: OVERVIEW OF REGISTRY ISSUES, FED. EMERGENCY MGMT. AGENCY (2011), https://www.hsdl.org/?view&did=765518; see also The Health Insurance Portability and Accountability Act of 1996 42 U.S.C § 1320-1320(e)(2).
  100. The HIPAA Privacy Rule, U.S. DEP’T OF HEALTH & HUMAN SERVS., http://www.hhs.gov/hipaa/for-professionals/privacy/ (last visited May 29, 2016).
  101. See id.
  102. See Sasha Chavkin, Special-Needs Registries Saved Lives During Sandy, but not in NYC, NEW YORK WORLD ( Jan. 16, 2013), http://www.thenewyorkworld.com/2013/01/16/disaster-registries.
  103. See id.
  104. EMERGENCY MANAGEMENT UNDER TITLE II, supra note 1, at 4.
  105. Hurricane Sandy Fast Facts, CNN, http://www.cnn.com/2013/07/13/world/americas/hurricane-sandy-fast-facts/ (last updated Oct. 3, 2015, 6:02 PM). Identified by some as “Superstorm” Sandy, Hurricane Sandy was the largest storm of the 2012 hurricane season. Id.
  106. Chavkin, supra note 102.
  107. Id. Various city agencies, such as the Human Services Administration and the Housing Agency did maintain data on their special needs clients. In Post-Sandy investigations, the agencies would not indicate whether that information was used to evacuate residents. Id.
  108. Id.
  109. Id.
  110. Id.
  111. Id. Electricity was typically required for charging electric wheelchairs, operating ventilators, refrigeration of perishable medications, as well as other essential activities. See JUNE ISAACSON KAILES, EMERGENCY POWER PLANNING FOR PEOPLE WHO USE ELECTRICITY AND BATTERY DEPENDENT ASSISTIVE AND TECHNOLOGY AND MEDICAL DEVICES 1 (2d ed. 2009), http://www.jik.com/Power%20Planning%2010.24.09.pdf.
  112. Chavkin, supra note 102.
  113. Department of Public Safety, Special Need Registry, DENVER: MILE HIGH CITY, https://www.denvergov.org/content/denvergov/en/department-of-safety/emergency-services/911-emergency-communications/special-needs-services/special-needs-registry-form.html.
  114. Id.
  115. Id.
  116. Id.
  117. Id.
  118. The HIPPA Privacy Rule, supra note 100.
  119. Special Needs Registry, CITY OF AURORA, COLO., https://www.auroragov.org/LivingHere/PublicSafety/EPOEM/SpecialNeedsRegistry/index.htm.
  120. Id.
  121. Id.
  122. Id.
  123. Brooklyn Ctr. for Indep. of the Disabled v. Bloomberg, 980 F. Supp. 2d 588, 612 (S.D.N.Y. 2013) (citing Declaration of Kenneth Martinez in Support of Plaintiffs para. 28, Brooklyn Ctr. for Indep. of the Disabled v. Bloomberg, 287 F.R.D. 240, (No. 11 Civ. 6690)).
  124. NATIONAL RESPONSE FRAMEWORK, supra note 61, at 32.
  125. See id. at 11-12.
  126. See discussion supra Section II.B.
  127. ELIZABETH DAVIS & HILARY STYRON, NAT’L ORG. ON DISABILITY, FUNCTIONAL NEEDS OF PEOPLE WITH DISABILITIES: A GUIDE FOR EMERGENCY MANAGERS, PLANNERS, AND RESPONDERS 37 (2009), http://www.nasuad.org/sites/nasuad/files/hcbs/files/209/10402/Guide-Emergency-Planners.pdf.
  128. See DEVELOPING AND MAINTAINING EMERGENCY OPERATIONS PLANS, supra note 70, at 4-19 to 4-20.
  129. EMERGENCY MANAGEMENT UNDER TITLE II, supra note 1, at 4.
  130. Id.
  131. Id.
  132. Id. at 10.
  133. See id. It should be kept in mind that in smaller jurisdictions the one bus company may also have contracts with the local nursing home, hospital, hotel, or other facility to provide transportation. In the event of an emergency situation contracted demand can potentially exceed the supply. This becomes a planning issue, the failure of which can lead to potential liability. See id.
  134. Id.
  135. DIV. OF MASS TRANSP., CAL. DEP’T OF TRANSP., TRANSIT EMERGENCY PLANNING GUIDE (2007).
  136. State of California, Evacuation and Transportation, GOVERNOR’S OFF. OF EMERGENCY SERS., http://www.caloes.ca.gov/for-individuals-families/access-functional- needs/evacuation-transportation (last visited May 29, 2016).
  137. Id.
  138. Brooklyn Ctr. for Indep. of the Disabled v. Bloomberg, 980 F. Supp. 2d 588, 604 (S.D.N.Y. 2013).
  139. Id. at 605.
  140. Id.
  141. Id.
  142. Id.
  143. Id.
  144. Id. at 606.
  145. Id.
  146. Id. at 606-57.
  147. Id. at 658.
  148. Id. at 648.
  149. Stipulation of Settlement and [Proposed] Remedial Order, supra note 82, at Exhibit C, 1.
  150. Id.
  151. See NATIONAL RESPONSE FRAMEWORK, supra note 61, at 20-26.
  152. 42 U.S.C. §§ 5121, 5196, 5196b, 5170b(a)(3); see also What is the PETS Act?, ASPCA PROFESSIONAL, http://www.aspcapro.org/resource/disaster-cruelty-disaster-response/what-pets-act (last visited May 29, 2016).
  153. Id.
  154. See id.
  155. See id.
  156. See CHAPTER 7: ADDENDUM 2, supra note 38, at 6-7.
  157. See id.
  158. See id.
  159. See id.
  160. See id.
  161. While beyond the scope of this article, it should be noted that household pets can be co-located, but it is not required. Jurisdictions are required to make provisions for evacuation and sheltering of household pets. Many jurisdictions meet this mandate by contracting with a local animal shelter or other organization to provide a safe location for household pets.
  162. Nancy Bartley, Debate Grows Over What Defines a Service Animal, SEATTLE TIMES (October 19, 2009, 12:01 AM), http://www.seattletimes.com/seattle-news/debate-grows-over-what-defines-a-service-animal/.
  163. 42 U.S.C. § 12101-12213. This provision is also applicable to Title III of the ADA, however, it is Title II that is specifically directed to public entities.
  164. CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE, ADA 2010 REVISED REQUIREMENTS: SERVICE ANIMALS 1 (2010) [hereinafter SERVICE ANIMALS], www.ada.gov/service_animals_2010.pdf.
  165. 42 U.S.C.A. § 3602; 14 C.F.R. § 382 (directing airlines as to what accommodations toward service animals are required by the Air Carrier Access Act).
  166. The ADA definition is important, because it is Title II of the ADA that has mandated that states provide persons with disabilities full inclusion in programs, services and activities, including emergency management activities. See TITLE II HIGHLIGHTS, supra note 14.
  167. Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5170b.
  168. 42 U.S.C. § 12132.

  169. SERVICE ANIMALS, supra note 164, at 1.
  170. Id.
  171. Interview with Claire Rubin, President, Claire B. Rubin & Assocs., LLC, in Bloomfield, Colorado D.C. ( July 22, 2015).
  172. SERVICE ANIMALS, supra note 164, at 2.
  173. Id.
  174. See id.
  175. Id.
  176. Id.
  177. Id.
  178. Id. at 3.
  179. Id.
  180. Id.
  181. FED. EMERGENCY MGMT. AGENCY, GUIDANCE ON PLANNING FOR INTEGRATION OF FUNCTINAL NEEDS SUPPORT SERVICES IN GENERAL POPULATION SHELTERS 9 (2010) [hereinafter GUIDANCE ON PLANNING FOR INTEGRATION], http://www.fema.gov/pdf/about/odic/fnss_guidance.pdf.
  182. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597 (1999).
  183. See GUIDANCE ON PLANNING FOR INTEGRATION, supra note 181, at 8.
  184. CHAPTER 7: ADDENDUM 3, supra note 38, at 1.
  185. Id.
  186. Id.
  187. Id. at 11-56.
  188. Id. at 8.
  189. Id. at 30.
  190. See id.
  191. Id. at ii.
  192. Id.
  193. Id.
  194. See id.
  195. See id.; CHAPTER 7 ADDENDUM 2, supra note 38; EMERGENCY MANAGEMENT UNDER TITLE II, supra note 1; GUIDANCE ON PLANNING FOR INTEGRATION, supra note 181; see also discussion supra Parts I, II.B.
  196. See sources cited supra note 195.
  197. GUIDANCE ON PLANNING FOR INTEGRATION, supra note 181.
  198. Id. at 8.
  199. Id.
  200. Id.
  201. Id.
  202. EMERGENCY MANAGEMENT UNDER TITLE II, supra note 1, at 2, 7, 9, 11.
  203. See id. at 117-23, 141-50.
  204. See GUIDANCE ON PLANNING FOR INTEGRATION, supra note 181, at 134.
  205. See id. at 142.
  206. 42 U.S.C. § 12132; EMERGENCY MANAGEMENT UNDER TITLE II, supra note 1, at 1.
  207. EMERGENCY MANAGEMENT UNDER TITLE II, supra note 1, at 4-5.
  208. Brooklyn Ctr. for Indep. of the Disabled v. Bloomberg, 980 F. Supp. 2d 588, 613 (S.D.N.Y. 2013).
  209. Id.
  210. Id.
  211. Id. At the time of Hurricane Sandy, New York City had eight special medical needs shelters (SMNSs), with at least one located in each borough. These shelters were for individuals who did not require hospitalization, but whose needs exceeded the capabilities of the general shelters. Id.
  212. Id.
  213. Id. at 614.
  214. Id. at 615.
  215. Id. at 616.
  216. Id.
  217. Id. at 617.
  218. Id.
  219. Id. at 621.
  220. Id.
  221. Id.
  222. See id. at 641-42.
  223. See id. at 641.
  224. Id. at 644.
  225. See id. at 645. In the subsequent settlement, the City agreed to create a minimum of 60 accessible emergency shelters (distinct from the eight SMNS) dispersed throughout the five boroughs and able to shelter approximately 120,000 persons with disabilities. Stipulation of Settlement and [Proposed] Remedial Order, supra note 81, at Exhibit A, 2.
  226. Cmtys. Actively Living Indep. & Free v. City of Los Angeles, No. CV 09-0287 CBM (RZx), 2011 U.S. Dist. LEXIS 1118364, 11-12 (C.D. Cal. Feb. 10, 2011).
  227. Id. at 12.
  228. Id. at 9-10.
  229. Id. at 11.
  230. Id. at 44.
  231. See id.
  232. Id. at 12.
  233. Id.
  234. EMERGENCY MANAGEMENT UNDER TITLE II, supra note 1, at 7.