Introduction

The Americans With Disabilities Act (ADA) is intended to establish equal rights and opportunities for individuals with disabilities. Virtually all businesses in the country, including funeral homes, must comply with the law.

The ADA defines an individual with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of impairment (such as a person with cancer who is in remission), or is regarded as having an impairment (such as an individual who is disfigured).

Examples of impairments:

• Visual
• Diabetes
• Multiple Sclerosis
• Muscular Dystrophy
• Drug addiction (recovering)
• Cancer
• Hearing
• Epilepsy
• HIV infection
• Speech
• Heart disease
• Emotional illness
• Alcoholism

Examples of major life activities:

• Walking
• Working
• Caring for one's self
• Learning
• Seeing
• Speaking
• Hearing
• Breathing
• Performing manual tasks

All funeral homes must take steps to make facilities accessible to members of the public with disabilities. The public accommodation provisions of the ADA require businesses to make reasonable attempts to provide individuals with disabilities the opportunity to enjoy the same level of service provided to individuals without disabilities. Funeral homes are specifically listed as a place of public accommodation under the new law. Necessary and reasonable changes for accessibility purposes must have been made to existing facilities by January 26, 1992.

Funeral homes with 15 or more employees must comply with the employment provisions of the ADA. Steps must be taken to make workplace facilities accessible to employment applicants and employees with disabilities, and employment practices cannot discriminate against individuals with disabilities. Employers with 25 or more employees were covered by the employment provisions as of July 25, 1992, and employers with 15 to 24 employees were covered as of July 26, 1994.

This guide is intended to provide funeral directors with a general understanding of ADA public accommodation requirements and steps to be taken for compliance purposes.

The information presented here is intended to assist individuals who want to develop and implement a compliance plan themselves, as well as for those who may want to use professional consultants, such as an architect, a design professional or an accountant. It is important to remember that not all professionals are experts on the ADA. If you use consultants, be sure they specialize in compliance with the new law and regulations.

The guides cannot be used as a substitute for legal, architectural or accounting advice which may be necessary for compliance at any specific funeral home. The planning process exercises described in this guide are recommended by NFDA as one method by which funeral homes can make and document determinations necessary for compliance with the ADA.

Compliance with public accommodation provisions of the ADA

As is the case with regard to all compliance actions in funeral homes, NFDA advises you to appoint one individual as the ADA compliance coordinator. This person should be responsible for gathering information on compliance, initiating a compliance planning process and taking actions deemed necessary for compliance purposes.

NFDA also recommends that each funeral home develop a written plan of action for compliance purposes before any changes are made in the funeral home. Following the process described in this guide will help avoid unnecessary and costly changes.

A three-part approach

The public accommodation provisions of the ADA are intended to provide access to public places and commercial facilities by individuals with disabilities, and to assure these individuals a level of service comparable to that afforded to individuals without disabilities.

Compliance with the public accommodations provisions of the law can be divided into three general areas:

1. the establishment of policies and procedures that do not discriminate against individuals with disabilities;
2. the provision of auxiliary aids and services; and
3. barrier removal.

The effective date of the public accommodations provisions of the law is January 26, 1992.

All necessary changes in policies and procedures must be made. It is important to understand, however, that the law does not require all funeral homes to provide every auxiliary aid and service on the market nor make every inch of existing funeral home space completely accessible and barrier free.

The law says auxiliary aids and services must be provided unless such actions would result in an undue burden, defined as significant difficulty or expense. Barrier removal in existing facilities must be readily achievable, defined as an action which is easily accomplished without much difficulty or expense.

The definition of the terms "undue burden" and "readily achievable" and the commentary provided in the regulations indicates that a somewhat higher standard should be maintained for the provision of auxiliary aids and services than that for barrier removal.

The law does not provide formulas for businesses to use in determining what is required for compliance purposes. This was not an oversight by Congress or regulators, it was done by design.

It was clearly the intent of Congress to give different types of businesses with different levels of resources the latitude to make individual determinations on what should and should not be done for compliance purposes. Congress did not intend to place small operators in financial jeopardy or force them out of business.

Unless the exact requirements of the law are clarified by Congress or the courts over time, individual funeral homes should conduct a complete audit of policies, procedures and facilities. Documentation of steps taken and compliance actions deemed reasonable for their specific business and facilities. Documentation of steps taken and the rational for decisions made could provide a valuable defense in the event a funeral home is challenged on compliance with the ADA. The compliance exercise included in this guide provides a step-by-step process that can be used for this purpose.

New construction and facility alterations

The ADA requires higher standards for new construction and facility alterations, which must be readily accessible to and usable by persons with disabilities. Any newly constructed facility for first occupancy after January 26, 1993 and any facility alteration after January 26, 1992 will be subject to the higher standards. These standards are outlined in the ADA Accessibility Guidelines for Buildings and Facilities, a copy of which has been mailed to every NFDA member.

Overall impact

NFDA believes the impact of the public accommodation provisions of the ADA on funeral homes may not be as burdensome as many members seem to think it will be. The fundamental nature of funeral service could be described as accommodating the needs and desires of families served.

It is likely that most funeral homes are already accommodating individuals with disabilities in a variety of ways which may be acceptable under the ADA. For example, if a consumer has difficulty reading a price list, wouldn't you read the prices to that customer? If so, you may be accommodating that individual in accordance with the ADA. The law does not require all funeral homes to have price lists available in Braille, as not all businesses will be able to do so without significant difficulty or expense.

The following exercise is designed to help funeral homes modify business policies and facilities to comply with the public accommodation provisions of the ADA.

Compliance exercise

1. Acquire and read a complete set of ADA regulations. The resource section of this guide tells you where to call or write for this information.
2. Review business policies and procedures. Make sure goods, services and facilities are offered and provided to individuals with disabilities, and to the family and friends of individuals with disabilities, at the same level and quality they are available to others. For example, the ADA prohibits funeral directors from refusing or charging more for handling an AIDS-related death on the basis that the deceased had AIDS. Service and price decisions must be made without consideration of factors relating to conditions defined as a disability under the ADA. Routinely ask families if they are aware of individuals with special needs who may be attending funeral services. Make and document necessary changes to existing policies or formally establish new ones for compliance.
3. Consider auxiliary aids and services that can be provided. Produce advertising and price lists in large, easy-to-read print. Assistive listening devices, telephone handset amplifiers and a variety of other devices can often be provided economically. Consult the resource section of this guide for information on groups that can help you learn more about products and services available for this purpose.
4. Conduct an audit of the facilities in the funeral home. Identify changes that could be made to make the facilities accessible to individuals with disabilities. The ADA Accessibility Guidelines for Buildings and Facilities can be used as a checklist. While the guide must be followed for new construction and major alterations to facilities, which must be fully accessible to individuals with disabilities, it also provides useful information for making modifications to existing facilities (such as specifications for ramps and wheelchair access). Use it as a complete checklist of alterations to be considered in your existing facility. You are cautioned that state and local building codes may be more stringent than the federal guidelines and must be researched. A thorough audit may require assistance from a qualified architectural design consultant.
5. Establish an estimated cost of auxiliary aids and services, and barrier removal options considered. Consult an architectural design firm or use the resources listed in this guide.
6. Establish priorities. Getting individuals into your facility, moving them to areas where goods and services are provided, and providing bathroom facilities are priorities under the ADA. Physical accessibility to the personnel office is also an ADA priority.
7. Where the provision of an auxiliary aid or service would constitute an undue burden (result in significant difficulty or expense), identify other accommodation options. For example, if you determine that providing a price list in Braille cannot be accomplished without significant difficulty or expense, establish a policy to read information to consumers when necessary.
8. Where removal of a barrier is not readily achievable (easily accomplishable without much difficulty or expense), identify other accommodation options. For example, water fountains should be low enough to the ground to accommodate an individual in a wheelchair. If this alteration proves too costly for a particular funeral home, consider mounting a paper cup dispenser off to the side of the water fountain at an easily accessible height. If all arrangement conference, visitation and funeral service rooms cannot be made physically accessible to all individuals without much difficulty or expense, make sure at least one of each is accessible. Be prepared to make scheduling changes to make those facilities available when needed. Many funeral homes may find that the installation of an elevator is not readily achievable. If an individual with a mobility problem cannot go up or down a flight of stairs to the casket selection room, consider making pictures available from a catalog. You might also arrange to have the individual's selection brought in for inspection prior to purchase if the customer so desires.
9. Be creative and use common sense. This could mean redesigning the function of different rooms in the funeral home, as opposed to modifying existing spaces to accommodate existing functions. Set up seating in your chapel to assure that a wheelchair has space to maneuver or can be positioned at the front of the chapel when needed. Not only is this required by the ADA, it just makes good sense. Walk through your funeral home with an eye for objects in halls with protruding legs or other obstacles to wheelchairs that might easily be moved or repositioned to eliminate the obstruction.
10. Plan for contingencies. All modifications may not be immediately affordable or necessary. For example, if you are planning a major alteration of the funeral home six months after the ADA takes effect, note this in your ADA compliance plan. Explain what alterations you are delaying and why.
11. Document accessibility changes considered, the priorities you established, how you arrived at the priorities and the estimated costs of alteration option.
12. Make an informed decision regarding the types of auxiliary aids and services you will provide (those that can be provided without significant difficulty or expense), and what facility changes you are planning to make (actions that can be accomplished without much difficulty or expense). Factors to be considered under the law include the overall size of the operation, the site involved, and the nature and cost of the actions to be taken. Simply stated, if the changes will put you out of business, compel you to lay off employees or cause your family to go without dinner three days a week—they do not need to be made. You may want to determine how much money you can afford to spend on changes now, and make some projections for the next few years. Establish priorities and schedule of changes to be made within this budget.
13. Document decisions made and the basis for each determination. A thorough audit, exercising good judgement and careful documentation of all steps taken are the key elements of compliance.
14. If you are planning to build a new facility or to alter an existing one, make sure your architect and construction company are knowledgeable about all federal, state and local requirements for accessibility.
15. If you are in the process of altering a facility, make sure the construction area is free of barriers to individuals with disabilities if they must pass through that area to reach bathrooms, telephones or any other public accommodations.

Financial assistance

A tax deduction of up to $15,000 per year is permitted for expenses associated with the removal of qualified architectural and transportation barriers.

Eligible small businesses can claim a tax credit of up to 50 percent of eligible access expenditures between $250 and $10,250. An eligible small business is one whose gross receipts do not exceed $1 million or whose work force does not consist of more than 30 full-time workers. Eligible access expenditures include the necessary and reasonable costs of removing barriers, providing auxiliary aids, and acquiring or modifying equipment or devices.

Penalties for noncompliance

The ADA provides for civil penalties of up to $50,000 for a first violation, and up to $100,000 for subsequent violations. Congress has granted small businesses some relief from civil actions which, depending upon the size of the business, can last up to 12 months. NFDA recommends, however, that all firms take immediate compliance actions. The next 12 months will pass quickly.

American Disabilities Act (ADA) Resources
ADA Information Line:800-514-0301
Monday - Friday, 10 a.m. - 6 p.m. (EST)

American National Standards Institute (ANSI)
11 West 42nd St
New York, NY 10036
212-642-4900

For information on current ANSI building and facilities standards for providing accessibility and usability by people with physical disabilities.

Architectural and Transportation
Barriers Compliance Board
1331 F St, NW
Washington, DC 20004-1111
800-872-2253
Website: www.access-board.gov

For final regulations and information on ADA requirements for accessible design in new construction and alterations.

Equal Employment Opportunity Commission
1801 L St, NW
Washington, DC 20507
800-669-3362
Website: www.eeoc.gov For final regulations and information on ADA employment requirements.

Internal Revenue Service
Information Lines:
800-829-1040
800-829-4059 TDD
Web site: www.irs.ustreas.gov

For tax information on ADA.

Mainstream Inc
3 Bethesda Metro Center, #830
Bethesda, MD 20814
301-654-2400

For a variety of information on increasing employment opportunities for persons with disabilities.

State and Local Assistance Groups for Individuals with Disabilities

For information on auxiliary aids and services, and barrier removal. Check your Yellow Pages under the headings "disability" or "handicapped assistance services."

State and Local Building Code Agencies

For information on building codes in your state and locality. Check the state and local listings in your area telephone book or call NFDA for a referral.

State Vocational Rehabilitation Agencies and Commissions

For general information and advice. Check your state agency phone listing or call NFDA for a referral in your state.

U.S. Department of Justice
Tenth Street and Constitution Ave, NW
Washington, DC 20530
(202) 514-2007
Website: www.usdoj.gov

For final regulations and information on all provisions of ADA.

If you have any questions, please contact NFDA M-F, 7:30 a.m. to 4:30 p.m. Central, toll-free at 800-228-6332, via email at nfda@nfda.org, or through our online form.