The ADA Amendments Act and Post-Secondary Education

Presented by L. Scott Lissner Friday, April 15, 2011

POWERPOINT PRESENTATIONS CAN BE DANGEROUS

NASA's Columbia Accident Investigation Board identified simplistic thinking from an over-reliance on PowerPoint presentations as a contributing factor in the Columbia shuttle disaster.

(New York Times Magazine 12/14/2003)

Provide equally effective access to programs, benefits and services for qualified individuals with disabilities in the most integrated manner possible

Section 504 of the Rehabilitation Act 34 CFR 104 & Title II of the Americans With Disabilities Act 28 CFR 35

• • •

WHAT IS COVERED?

Programs, Benefits & Services Communications Facilities (June 1977/January 1991/March 2012) • • •

PUT ANOTHER WAY

Employment – Faculty, Staff, Work Study, Teaching Assistants, Adjuncts ...

Education – Matriculated, Non-matriculated, Distance, Practica, … Public events – Athletics, Lectures, Concerts, Job Fairs, Conferences, …

• • •

Keeping up with What’s New

ADA As Amended New Regulations – Title II – Title III – New Design Standards Emerging E&IT Standards – Kindle – Joint Letter – Penn State – – NPRM for Web Access AIM Commission – 21st Century Communications and Video Accessibility Act 5

• • • • • •

CONTEXT

1973 - Section 504 1977- 504 Regulations 1990 – ADA 1999 – Sutton Trilogy 2002 – Toyota v. Williams 2009 – ADAAA

ADA AMENDMENTS ACT • • • • September 2008 signed by Pres. Bush January 2009 became law October 2009 EEOC draft regulations March, 2011, final regulations from the EEOC 7

DEFINTITION OF DISABILITY

• • • A physical or mental impairment that substantially limits a major life activity A record of such an impairment Being regarded as having such an impairment 8

• Rules on Applying the Definition Have Changed – An impairment need not prevent, or significantly or severely restrict, performance of a major life activity to be “substantially limiting.” – Disability “shall be construed in favor of broad coverage” – An individual’s ability to perform a major life activity is compared to “most people in the general population,” often using a common-sense analysis without scientific or medical evidence.

– Major life activities clarified and expanded 9

• • •

What is Substantial?

The definition of disability should be construed broadly favoring expansive coverage – Not Toyota’s “prevents or severely restricts” – Not limited to activities “of central importance to daily life” (activities of daily living) used in Toyota Excludes ameliorative impact of mitigating measures in determining coverage Episodic conditions or those in remission are based on impact during active or acute phase 10

Limited in What Way?

C ONDITION M ANNER D URATION

• • Relevant inquiry is how a major life activity is substantially limited, not on what an individual can do in spite of an impairment May consider: – effort or length of time required to perform major life activity 11

– total amount of time major life activity may be performed – the way an impairment affects the operation of a major bodily function • The comparison of an individual's limitation to the ability of most people in the general population often may be made using a commonsense standard, without resorting to scientific or medical evidence. 12

MAJOR LIFE ACTIVITIES

• Includes but not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping , walking, standing, lifting,

bending

, speaking, breathing, learning, reading, concentrating, thinking,

communicating

, and working.

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“Major Life Activities” also include the operation of

major bodily functions including but not limited to : • • • • • • Immune Respiratory Circulatory Endocrine Digestive Reproductive • • • • • Neurological Brain Normal Cell Growth Bowel Bladder 14

• Major Life Activities (EEOC Regulatons) – Include but are not limited to caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating,

sitting, reaching, interacting with others

, and working 15

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• • • • • •

New Title II & III Regulations

Cave Idus Martias

Service Animals Documention Effective Communications – Remote Services – Readers Mobility Devices – Segways, Golf Carts & More Housing – New Category for Residence Halls Ticketing – Stage & Podium Access Standards for Design 17

The Higher Education Opportunity Act

– Commission on Alternative Media – Funding for ID demonstration projects – Data Collection in IPEDS ?

– Demonstration Grants ?

EEOC is final ADA AA Definition of Disability

– Regulatory Definition of Disability

Office of Federal Contracts Compliance Programs

– Strengthening Affirmative Action 18

DOCUMENTATION

Title III Section 36.309 (b)(1)

WHAT DOES JUSTICE SAY ABOUT DOCUMENTATION?

• • • Based on DOJ’s enforcement experience, research, comments Addresses concerns about sometimes inappropriate and burdensome requests for documentation about existence of disability and need for accommodations Note: title III preamble says same principles apply to title II entities 20

• • Examples of documentation that should generally be accepted – Recommendations of qualified professionals familiar with the individual – Results of professional evaluation – History of diagnosis – Observations by educators – Past use of accommodations.

Generally, a testing entity should accept, without further inquiry, documentation – provided by a qualified professional who has made an – individualized assessment of the applicant that supports the need for the modification 21

BASIC PROVISIONS REMAIN

• • • Specific ADA provision applies to private entities that offer exams or courses related to applications, licensing, certification, or credentialing. Exams or courses must be given in a place and manner accessible to persons with disabilities, or alternative accessible arrangements provided. Purpose: to prevent exclusion from educational, professional, or trade opportunities because of inaccessible exams or courses.

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Give considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received in similar testing situations including those provided in response to an Individualized Education Program or Section 504 Plan.

Request for documentation should be narrowly tailored to ascertain the individual's need for the requested modification or auxiliary aid.

Generally, a testing entity

should accept without further inquiry documentation

provided

by a qualified professional who has made an individualized assessment of the applicant. Appropriate documentation may

include a letter from a qualified professional or evidence of a prior diagnosis, accommodation, or classification, such as eligibility for a special education program.

• Focus on need for accommodation • Give weight to accommodation history • Give deference to treating professionals • Give deference to clinical and professional narrative

Title II Entities are unlikely to be held to a lesser standard

THE VALUE OF SELF-REPORT

It is only through understanding an individual's experience in the context that we can translate diagnostic evaluations into useable information on the barriers and facilitators to access and full participation.

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LISTEN TO THE EEOC’S FINAL REGULATONS IMPLIMENTING THE ADAAA

• • • • Tasked by Congress to Take the Lead Stayed Close to the Statute Congruent with DOJ Rulemaking Employment Law has Driven Practice 27

• The EEOC: Use a Common-Sense Assessment – An impairment need not substantially limit more than one major life activity – Impairments need not prevent, significantly restrict or severely restrict performance of a major life activity to be substantially limiting – An individual’s ability to perform a major life activity in a similar manner under comparable conditions as “most people in the general population” – Should not require extensive analysis – Typically using a common-sense approach without scientific or medical evidence 28

Regarded As

• • • • • Broad Construction Focus on the substantive issues of failure to accommodate or exclusion not class membership Two elements: – Employer took employment action – Because of an individual’s actual or perceived impairment Excludes transitory (<6 months) or minor Not entitled to accommodations 29

Justice William J. Brennan

Arline v. Nassau County, 1987 “Congress acknowledged that society's accumulated myths and fears about disability and disease are as handicapping as are the physical limitations that flow from actual impairment.” 30

MODEL FOR DECISION INPUTS

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21 st Century Communications & Video Accessibility Act

– Accessibility of advanced communications equipment and services – Requires devices capable of displaying closed captioning, to deliver available video description, and to make emergency information accessible.

– Captioning of internet delivered television 32

Web Access

• • Leading up to the proposed rule making – Kendel complaints • Comparable time, effort and expense.

– DOE and DOJ joint “Dear Colleague Letter” June 2010 • Interpret broadly Public statements from DOJ – From “Can be an effective communication tool: in the ADA Tool Kit to:

“There is no doubt that the internet sites of State and local government entities are covered by Title II of the ADA. Similarly, there is no doubt that the websites of recipients of Federal financial assistance are covered by Section 504 of the Rehabilitation Act.”

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Web Access

• Proposed rule making questions – Standard to adopt: • WCAG 2.0´s "Level AA Success Criteria“ • Section 508 • Performance standards – Barriers, Facilitators and technical assistance needed – Are there distinct or specialized features used on websites that render compliance with accessibility requirements difficult or impossible? • If so, viable alternatives?

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• Advance Notices of Proposed Rulemaking published July 26 (

http://www.ada.gov/anprm2010.htm

)

– Accessibility of web information and services – Movie captioning and video description – Next generation 9-1-1 – Equipment and furniture 35

“Qualified reader” and “qualified interpreter”

• • “Qualified reader” defined: – One who reads effectively, accurately, impartially – One who can use necessary vocabulary “Qualified interpreter” modified – Includes sign language, oral, and cued speech interpreters – Oral and cued speech interpreter defined 36

VIDEO REMOTE

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…Video remote interpreting

DOJ sets performance standards – Quality of video and audio • High quality, clear, real-time, full-motion – 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 Sections 35.160(d), 36.303(f) 38

S E R V I C E ?

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S U P O R T ?

Service Animal

• Definition: a dog that does work or performs tasks for the benefit of an individual with a disability (including psychiatric, cognitive, mental) 40

Examples of tasks

• • • Assist during seizure Retrieve medicine or other items Help individual with • • • dissociative identity disorder to remain grounded Prevent/interrupt impulsive or destructive behavior Assist with balance, stability Provide non-violent protection or rescue work 41

Emotional support/comfort?

If this is the only function, not considered a service animal 42

Can ask only two questions • Is this service animal required because of a disability?

• What work or tasks is the animal trained to perform? Can’t ask about disability

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Other issues

• • An entity can exclude a service animal if • it is not controlled or • it is not housebroken • Covered entity is not responsible for care or supervision of a service animal No “service animal” license or documentation required 44

Miniature horses

• • Allowed if – Reasonable – Individually trained Assessment factors – Type, size, weight – Handler’s control – Whether housebroken – Safety requirements of facility 45

Caution: other laws also apply

• • • • • Fair Housing Act: Department of Housing and Urban Development Department of Transportation (airlines, airports, bus travel) Air Carrier Access Act Section 504 regulations State and local requirements 46

Other Power-Driven Mobility Device

“Any mobility device powered by batteries, fuel, or other engines —whether or not designed primarily for use by individuals with mobility disabilities —that is used by individuals with mobility disabilities for the purpose of locomotion.” 47

Use of OPDMDs

Covered entity must make reasonable modifications to permit individuals with mobility disabilities to use OPDMDs unless the entity can demonstrate that the class of OPDMD cannot be operated in accordance with legitimate safety requirements adopted by the entity. 48

OPDMD Assessment Factors

1. The type, size, weight, dimensions, and speed of device 2. The facility’s volume of pedestrian traffic 3. The facility’s design and operational characteristics (e.g., indoors/outdoors, square footage, the density and placement of stationary devices, and the availability of storage, if requested) 4. Whether legitimate safety requirements can be established to permit the safe operation of OPDMD in the specific facility 5. Whether use creates a substantial risk of serious harm to the immediate environment or natural or cultural resources, or poses a conflict with Federal land management laws and regulations.

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VERIFICATION

Can request a “credible assurance” that an OPDMD is required because of the person’s disability.

May not ask about nature and extent of disability.

Develop a policy clearly stating circumstances when use of OPDMD’s is permitted.

Source: Title II: Sections 35.104, 35.137 Title III: Sections 36.104, 36.311

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Housing at a Place of Education Title II Section 35.151(f) Title III Section 36.406(e)

New category for residence halls. Meet the requirements for transient lodging and specific requirements for accessible routes throughout the unit and accessible turning spaces and work surfaces in kitchens from the residential facilities standards

Apartments or townhouse facilities that are provided with a lease on a year-round basis exclusively to graduate students or faculty and that do not contain any public use or common use areas available for educational programming must comply with the requirements for residential facilities in sections 233 and 809 of the 2010 Standards.

Assembly Areas

Vertical Dispersion & Line of Sight Stage Access No additional requirements for captioning of communications or emergency information Source: Section 35.151(g) & Section 36.308

Event ticketing

•Distribution outlets •Clear seating charts •Ticket transfers •“Sell outs” and accessible seats •Equivalent pricing and access limitations •Verification

FACILITIES: NEW CONSTRUCTION, ALTERATIONS, EXISTING FACILITIES

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The Basics: new construction and alterations

• New standards for new construction and alterations – DOJ adopts 2004 ADAAG, based on model codes and ANSI (sections 35.151(c), (d); 36.406) – For the first time, certain areas are included in the Standards (and 2004 ADAAG), e.g., judicial, correction, detention facilities; play areas, swimming pools 56

…The Basics: new construction and alterations

• DOJ adds specific provisions (see sections 35.151(a),(b),(c)(5),(d)-(k); 35.152; 36.406(b)-(g)) – Path of travel in title II – Places of lodging – Assembly areas – Medical care facilities – Social service centers – Housing at a place of higher education – Detentions and corrections 57

Time frames

• • “Effective date” -- March 15, 2011 Applies to Title II and Title III regulations Exceptions – Hotel reservation policies – 2010 ADA Standards for Accessible Design 58

…Time frames

“Compliance date” -- March 15, 2012 • New construction and alterations MUST comply with the Standards • In the meantime, choose a standard – Title III: 1991 or 2010 Standards – Title II: 1991 Standards, 2010 Standards, or UFAS (Uniform Federal Accessibility Standards) 59

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

Handout: Tips for the Transition to 2012 60

say

Yes when you can and no when you have to.

rather than

No when you can and yes when you have to.

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QUESTIONS?

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L. Scott Lissner

• • • University ADA Coordinator & 504 Compliance Officer Associate, John Glenn School of Public Policy Lecturer at the Knowlton School of Architecture, Moritz College of Law & Disability Studies • • President Elect Co-Chair, Public Policy • • • • •

OTHER

Appointed, Ohio Governor's Council For People With Disabilities Chair, ADA-OHIO Appointed, State HAVA Committee Appointed, Columbus Advisory Council on Disability Editorial Board, Thompsons 504 Compliance Handbook 63

CONTACT

L. Scott Lissner, ADA Coordinator, The Ohio State University Office of Diversity And Inclusion 1849 Cannon Drive Columbus, OH 43210-1266 [email protected] Http://ada.osu.edu

(614) 292-6207(v); (614) 688-8605(tty) (614) 688-3665(fax) 64