Transcript AHEAD JULY 2012 DOJ’s 2010 Regulations, Part 2

AHEAD
JULY 2012
DOJ’s 2010 Regulations, Part 2
Session 6.3
Communication, reservations, examinations
OPDMDs and technology
Irene Bowen
James A. Bostrom
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Presenters
Irene Bowen, J.D.
President
ADA One, LLC
James A. Bostrom
Deputy Chief
Disability Rights Section, DOJ
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The content provided in this presentation is for
informational purposes only. Neither the content
nor delivery of the content is or shall be deemed to
be legal advice or a legal opinion. The audience
cannot rely on the content delivered as applicable to
any circumstance or fact pattern. The information
provided is not a substitute for professional legal
advice.
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The Americans with Disabilities Act
of 1990
Broad ban on discrimination
• Title II (public entities) – state and local
colleges and universities
• Title III (private entities) – private colleges
and universities
-- regardless of federal funding
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ADA Amendments Act
• ADAAA reset the definition of “individual with
a disability”
• EEOC has issued regulations
• DOJ has not begun rulemaking
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DOJ’s new ADA regulations
• Issued July 26, 2010
• Updates to 1991/1994 regulations under titles
II (28 C.F.R. part 35) and III (28 C.F.R. part 36)
• Two parts
– Policy changes
– New accessibility standards
• Regulations and guidance are at www.ada.gov
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2010 revisions:
effective date
March 15, 2011
• Policies to be compliant
• Applies to service animals,
mobility devices, etc.
• For hotel reservation policies
(including campus conference
centers), an extra 12 months
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2010 revisions: compliance date
March 15, 2012
• New construction and alterations
MUST comply with the Standards
• Existing facilities to be compliant
with barrier removal and program
accessibility requirements (using new
Standards as measure)
NOTE:
On March 15, 2012, DOJ modified compliance date for existing
pools.
Sections 35.151(c), 36. 304(d).
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AGENDA
• Effective communication
• Reasonable modifications
– Event ticketing
– Lodging reservations
– Examinations and courses
• OPDMDs
• Technology and the web
• Twelve tips
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DON’T HANG UP THAT PHONE!
Effective communication
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Generally
• Under title III, communications
with individuals with disabilities
must be “effective.” 28 CFR
36.303.
• Under title II, communications
with individuals with disabilities
must be “as effective as”
communications with others.
28 CFR 35.160 (a), 36.303(c)(1).
• Provide appropriate auxiliary
aids and services “where
necessary.” 28 CFR 35.160(b),
36.303(c)(1).
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TRS calls
• Entity must answer
telecommunications relay calls
in same manner as it answers
others. 28 CFR 35.161(c),
36.303(d)(4)
• See Wells Fargo settlement.
http://www.ada.gov/wells_fargo/wells_fargo_settle.htm
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Automated attendant systems
• Automated voice mail,
interactive voice response
systems
• If provided, must ensure
effective communication in
real time with individuals
using auxiliary aids and
services (TTYs, TRS).
28 CFR 35.161(b), 36.303(d)(4).
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Changes to definitions
2010 regulation revisions
• Added to examples of
auxiliary aids/services
– Written notes, accessible
electronic technology
– Screen reader software
• “Qualified” interpreters and
readers defined/clarified
28 CFR 35.104, 36.104.
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Companions
• Companions
– Covered entities must communicate effectively
with companions, as appropriate
– Family members, friends, associates
• Can’t require person to bring own interpreter
• Can’t rely on companions to interpret except
in emergency or by request
• 28 CFR 35.160(a), (b), (c), 36.303(c).
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Video remote interpreting
Performance standards
– Quality of video and audio
• High quality, clear, real-time, fullmotion
– Dedicated high-speed connection
– Picture:
• Clear, sufficiently large, and
sharply delineated
• Heads, arms, fingers
– Voices: clear and easily understood
transmission
– Quick set-up: training of users
28 CFR 35.160(d), 36.160(f).
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Missed appointments
• DOJ guidance to section 36.301 (c) of title III rule:
As such, medical providers cannot pass along to
their patients with disabilities the cost of
obtaining an interpreter, even in situations where
the individual cancels his or her appointment at
the last minute or is a ``no- show'' for the
scheduled appointment. The medical provider,
however, may charge for the missed appointment
if all other patients are subject to such a charge in
the same circumstances.
75 Fed Reg 56282 (Sep. 15, 2010)
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Missed appointments  classes?
• See Utah Valley University OCR letter, 08102026, July 16, 2010
• Factors re: acceptable policy and practice as to charging for
excessive no-shows
– Written policy signed by students
– 2 hours notice
– 6 ways to cancel
– 3 no-shows allowed
– Counseling provided
– Opportunity to reduce fee
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Other general principles
• Type of auxiliary aid or service varies per
– Individual’s method of communication
– Nature, length, and complexity of communication
– Context
• Consultation
– Title III: consult with individual whenever possible
– Title II: primary consideration to requests of individual
• Effective communication must be provided in
– Accessible format
– Timely manner
– Way that protects privacy and independence
35.160(b)(2), 36.303(c)(ii)
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Primary consideration: pending appellate cases
(not under 2010 revisions)
• Both about students with cochlear implants
• K.M. v. Tustin (C.D. Cal, July 2011)
• Argenyi v. Creighton University Medical School (D.Neb.
Sept 2011)
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…Pending appellate cases
• DOJ filed briefs on questions in both, under original
regulations. Issues:
 Primary consideration
 Have to show otherwise “effectively excluded”
from programs?
http://www.justice.gov/crt/about/app/briefs/argenyibrief.pdf
• DOJ’s views
 Standards are effective communication, equal
opportunity to participate.
 No need to show effective exclusion. Mere access
is not enough.
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The Web: NAD v. Netflix
• June 19, 2012, decision of Massachusetts District
Court http://dredf.org/captioning/MJP-DENIEDJUDGE-PONSOR-ORDER-6-19-12.pdf
• Allowed case re: captioning of streaming videos to
proceed
• A web-only business can be a “place of public
accommodation” under the ADA (following NFB v.
Target Corporation and DOJ’s brief)
• Congress intended ADA to adapt to changes in
technology
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…The Web: NAD v. Netflix
• Copyright (“control”) issues may be raised later
• Cost/economic hardship will be considered later as
to “undue burden” exception
• No “positive repugnancy” between ADA and Twenty
First Century Communication and Video Accessibility
Act of 2010 (delivery of video programming from US
television)
• DOJ’s statement of interest:
http://www.ada.gov/briefs/netflix_SOI.pdf
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Facing forward: five steps to
effective communication
1. Let the public know your
policies
2. Review policies re: TRS,
automated attendant
systems, companions, VRI
3. Train staff
4. Be prepared but… be flexible
with approaches
5. Evaluate web sites
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REASONABLE MODIFICATIONS
Event ticketing
Hotel reservations
Examinations and courses
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Reasonable modifications
• Entity must make reasonable modifications in
policies where necessary to avoid discrimination.
28 CFR 35.130(b)(7), 36.302
• 2010 regulation revisions:
–
–
–
–
–
–
Service animals
Miniature horses
Mobility devices
Event ticketing
Hotel reservations
Examinations and courses
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Event ticketing
Application of equal opportunity concept:
A covered entity may not, on the basis of
disability … provide a qualified individual
with a disability an opportunity that is not
equal to that afforded others.
28 CFR 35.130(b)(1)(i-iii), 36.202(b)
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Event ticketing
•
•
•
•
•
Distribution outlets
Clear seating charts
Ticket transfers
“Sell outs” and accessible seats
Equivalent pricing and access
limitations
• Verification
28 CFR 35.138, 36.302(f).
See DOJ technical assistance
piece.
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Examinations and courses
• Entity that offers exams or courses re:
licensing, credentialing… shall offer them in a
place and manner accessible to people with
disabilities. 28 CFR 36.309.
• Generally, exam must ensure that results
accurately reflect aptitude, achievement level,
etc. rather than reflecting impaired sensory,
manual, or speaking skills.
• DOJ: Colleges and universities should follow.
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Documentation
Any request for documentation should be
narrowly tailored to ascertain the individual's
need for the requested modification or auxiliary
aid.
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Details
Give considerable weight to documentation of
past modifications, accommodations, or
auxiliary aids or services -• those received in similar testing situations
• including those provided in response to an
Individualized Education Program or Section
504 Plan.
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Limited inquiries
• Generally, accept without further inquiry
documentation provided by
• a qualified professional
• who has made an individualized assessment of
the applicant.
• May be in form of
• letter from a qualified professional and/or
• evidence of a prior diagnosis, accommodation, or
classification
(e.g., eligibility for a special education program)
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New AHEAD Guidance on
Documentation Practices
•
Three levels of documentation
•
•
•
•
Primary: student’s self-report
Secondary: observation and interaction
Tertiary: information from external or third parties
Documentation process
• Individual review
• Commonsense standard
• Non-burdensome process
• Current and relevant information
May 14, 2012:
http://www.ahead.org/resources/documentation_guidance
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Reservations for places of lodging
Individuals with
disabilities must be able
to make reservations for
accessible guest rooms
during the same hours
and in the same manner
as other guests
28 CFR 36.302(e)
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… Reservations
•
•
•
•
•
Access to reservations systems
Information about features
Hold back accessible rooms
Block accessible rooms
Guarantee of holding specific accessible room
that is reserved
• Ensure that third parties act consistently with
rule
– Reasonable efforts
– Information provided
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OPDMDs
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TECHNOLOGY AND THE WEB
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Four advance notices of proposed
rulemaking published July 26, 2010
• Four areas in which DOJ may propose
rulemaking
– Accessibility of web information and services
– Movie captioning and video description
– Next generation 9-1-1
– Equipment and furniture
• All are at DOJ’s ADA website
http://www.ada.gov/anprm2010.htm
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TWELVE TIPS
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2010 changes: Twelve Tips*
1. Update policies on
service animals.
2. Alert staff to new
provisions on miniature
horses.
3. Develop clear policies
about OPDMD’s.
*See Alert article, “Are You
There Yet?”
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Twelve Tips
4.
If you use VRI, be
sure it works and
meets DOJ’s
standards.
5. Check your phone
systems for effective
real-time
communication.
6. Don’t drop the call
(TTY or TRS).
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…Twelve Tips
7. Study the provisions about
exams and courses.
8. Align your event ticketing
policies with the 2010
provisions.
9. For any facilities with
overnight guests (conference
centers, hotels), update your
reservation systems for 2010
compliance.
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…Twelve Tips
10. Follow the 2010 Standards for
new construction and
alterations.
11. Complete barrier removal and
program accessibility changes.
12. Keep up with your
homework.
BONUS:
Evaluate web sites and other
electronic communication.
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ADA One articles: Ahead of the ADA
Access Curve
• Part 4 DOJ’s new regulations: It’s about time! http://adaone.com/articles-tips/ahead-of-the-ada-access-curve-part-4/
• Part 5 The Ides of March are upon us: Are you complying with
DOJ’s new regulations about service animals? http://adaone.com/articles-tips/ahead-of-the-ada-access-curve-part-5/
• Part 6 DOJ’s new ADA requirements: Six common myths and
mistakes http://ada-one.com/articles-tips/ahead-of-the-adaaccess-curve-part-6/
• Part 7 DOJ’s new ADA requirements: Six more common myths
and mistakes http://ada-one.com/articles-tips/ahead-of-theada-access-curve-part-7/
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Resources
DOJ web site: www.ada.gov
DOJ information line: 800 - 514 - 0301 (voice)
800 - 514 - 0383 (TTY)
ADA TA Centers: 800-949-4232 (Voice/TTY)
Access Board: www.access-board.gov
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CONTACT
Irene Bowen, J.D.
President, ADA One, LLC
9 Montvale Court
Silver Spring, MD 20904
Web site: http://ADA-One.com
301 879 4542 (O)
301 236 0754 (F)
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CONTACT
Jim Bostrom
202 - 307 - 2584
[email protected]
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