Consider whether you would want to be involved in the following: a six-day bench trial; 35 witnesses, including city officials, experts, and persons with disabilities; 25,000 pages of documentary exhibits; several hundred pages of briefing and proposed findings of fact; and an additional trial to assess whether the city can justify its lack of accessibility on the grounds of fundamentally altering the nature of the program or the activity. I didn’t think so. Nevertheless, this is exactly what was the case in Brooklyn Center for Independence of Disabled v. Bloomberg, _ F.Supp.2d_, 2013 WL 5943995 (S.D. NY, November 7, 2013), where a successful suit was brought against the Mayor of New York for violating title II of the ADA because persons with disabilities did not have meaningful access to the City of New York’s disaster plan.
To ensure that your client does not face the same situation as the City of New York, what might a disaster plan audit look like? That case lays out a whole litany of things that such an audit could entail including:
1. Does the evacuation of persons with disabilities when dealing with an emergency take into account all the settings that persons with disabilities reside in, including high-rises and the like?
2. Has each Department of the city designated a person to ensure that the department’s emergency plan and policies accommodate persons with disabilities?
3. Were persons with disabilities involved in the emergency planning process?
4. Are persons with disabilities able to use available transit that is provided in emergencies? That is, is such transportation sufficient and accessible?
5. Are persons with disabilities informed about all options available to them in case of emergency?
6. Are the emergency shelters accessible to persons with disabilities both with respect to entry and use? Is the system set up to ensure persons with disabilities needing accessible shelters can get one?
7. Do shelters used for persons with disabilities have effective ways of communicating with persons with disabilities so that persons with disabilities are able to communicate and understand the information at the shelters?
8. Does the shelter plan allow for persons with disabilities to stay in the emergency shelter with their caregivers (such as by way of example, with their service animal)?
9. Do the shelter plans include a strategy to provide backup power generators or otherwise ensure electricity will be available at shelters for those persons with disabilities who depend on electricity for their independence?
10. Is there a process for locating, purchasing, and storing as much of the supplies and equipment as possible and practical to meet persons with disabilities needs in the event of an emergency?
11. Is there a plan for implementing corrective action to ensure the shelter system is accessible?
12. Does the city have a system of canvassing after a power outage or other emergency in order to find persons with disabilities at risk due to the lack of power?
13. Are communications at commodity distribution points accessible to persons with disabilities?
14. Are communications at disaster assistance centers (a place providing services such as telephone, Internet, financial assistance, relocation assistance, etc.), accessible to persons with disabilities?
15. Is there a plan in place for directing the provisions of prescription medicine assistance in the event of an emergency?
16. Does the debris management plan provide guidance on how the needs of persons with disabilities will be taken into account?
17. Is there an emergency plan for housing recovery after a disaster that ensures persons with disabilities have meaningful access to that plan?
18. Is information provided to persons with disabilities about accessibility of the shelter system and how to access it?
19. Are the city’s websites that have disaster information on them accessible to persons with disabilities?
20. Does any advance warning system reach persons with disabilities directly and not just the providers serving persons with disabilities?
21. Are any flyers used to notify people about emergencies accessible to persons with disabilities and if not, is there a system in place to ensure that the information in those flyers is communicated in other ways to those persons with disabilities who cannot read the flyers?
22. Does the plan provide that information about shelter accessibility, accessible transportation, evacuation assistance, or any other information required by persons with disabilities in order to respond to an emergency be given persons with disabilities? Is that information complete, accurate, and reliable?
23. Is sufficient information given out about evacuation and transportation assistance for persons with disabilities?
24. Are there plans or agreements to ensure that paratransit remains open for as long as other forms of public transportation are in order to allow persons with disabilities the same amount of time to evacuate as others.
25. Is there a requirement that the number of shelters that are accessible to persons with disabilities will be a sufficient number to serve persons with disabilities in the city?
26. Does the city even know how accessible each shelter is? Is there a plan in place to assess the accessibility of each shelter?
27. Does the plan allow for accessible transportation between shelters?
28. Is a person with a disability able to in advance identify accessible evacuation center as close as possible to where they live?
29. If an interim housing plan is used or in place, does such a plan include ensuring that persons with disabilities have meaningful access to that plan?
30. Has the city taken the no for an answer in the planning process with respect to accommodating persons with disabilities only where it can be shown that to do otherwise would fundamentally alter the nature of the program or activity or it would constitute an undue burden? If undue burden is found, has the CEO of the city certified as such?