Transcript DOJ’s 2010 ADA Accessibility Standards

2010 Revised ADA Regulations:
An Overview
18th Annual ADA Update
Mid-Atlantic ADA Center
Baltimore, Maryland
September 21, 2011
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DOJ’s Revised ADA Rules
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Overview of revised rule.
2010 Standards: Compliance Dates, “Existing
Facilities”, Safe Harbor, and Supplemental
Requirements.
Selected changes to nondiscrimination policies.
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Revisions to ADA Regulations
Published September 15, 2010


First major updates/revisions in 19 years
 Update of nondiscrimination policies
 Adoption of updated accessibility standards
Two regulations
 Title II: State and local governments
 Title III: Public accommodations and
commercial facilities
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Effective Date:
Title II and Title III Rules
General effective date - March 15,
2011
 As of this date, policies must be
compliant with new requirements
(except for hotel reservations – 18
months).
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The 2010 Standards for
Accessible Design:
Compliance Dates
“Existing Facility”
Safe Harbor
Supplemental Requirements
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Compliance Date for 2010 Standards

March 15, 2012 (18 months from date of
publication in the Federal Register):
2010 standards must be followed for new
construction, alterations, barrier removal, and
program access.
 Immediate use allowed.

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Title II: Applicable Standards Until
Compliance Date
Until March 15, 2012, title II entities can choose
to use:

the 2010 Standards;
the 1991 Standards (no elevator exception); or
the Uniform Federal Accessibility Standards (UFAS).

Must follow choice consistently in a facility.
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Title III: Applicable Standards Until
Compliance Date
Until March 15, 2012, entities can choose to
use:

the 2010 Standards or
the 1991 Standards.

Must follow choice consistently in a facility.

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As of March 15, 2012
The 2010 Standards replace the 1991
Standards and must be followed.
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What Standards Apply to Existing
Facilities?
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Title II — Program accessibility
Title III — Readily achievable barrier
removal
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Definition of “Existing
Facility”

Rules add a definition of “Existing Facility”
An “existing facility” is “…a facility in
existence on any given date, without
regard to whether the facility may also be
considered newly constructed or altered
under this part.”
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Safe Harbor – Existing Facilities


Elements that comply with the corresponding
requirements for those elements in the 1991
Standards do not need to be modified to meet
the 2010 Standards unless those elements are
altered on or after March 15, 2012.
Safe Harbor does not apply to those elements in
existing facilities that are not subject to specific
requirements in the 1991 Standards.
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Supplemental Requirements:
No Safe Harbor
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Amusement Rides;
Recreational Boating Facilities;
Exercise Machines and Equipment;
Fishing Piers and Platforms;
Golf and Miniature Golf Facilities;
Play Areas;
Saunas and Steam Rooms;
Swimming Pools, Wading Pools and Spas;
Shooting Positions with Firing Positions; and
Miscellaneous: Team/Player Seating, Accessible Routes
to Bowling Lanes and Court Sports Facilities.
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Noncomplying Facilities
Noncomplying title II and title III facilities, i.e.,
facilities built after the compliance date for the
1991 Standards, but that are not in compliance
with those standards, must be modified as
follows:
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Noncomplying Facilities
Continued
Before March 15, 2012 choice of:
1991 Standards
2010 Standards
UFAS (Title II only)
 On or after March 15, 2012, covered
entities must bring their noncomplying
facilities into compliance with the 2010
Standards.

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Selected Changes to
Nondiscrimination Requirements:
Wheelchairs and Other Power-Driven
Mobility Devices
Communication and Auxiliary Aids
Service Animals
Ticketing
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New Definitions
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Wheelchair
Other Power-Driven Mobility Device
Direct threat in title II (mirrors title III)
Revised definitions of Auxiliary Aids and
Services and Qualified Interpreter
Qualified Reader
Video Remote Interpreting (VRI) Service
Service Animal
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Wheelchairs and
Other Power-Driven Mobility
Devices
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Mobility Devices:
Overview of Changes
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Adds a definition of “wheelchair.”
Adds a definition of “other power-driven
mobility device.”
Provides a number of general provisions
regarding these two categories of mobility
devices.
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Definition of Wheelchair
§ 35.104 (title II); § 36.104 (title III)
“A manually-operated or power-driven
device designed primarily for use by an
individual with a mobility disability for the
main purpose of indoor, or of both indoor
and outdoor locomotion.”
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Use of Wheelchairs
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Covered entities must permit individuals with
mobility disabilities to use wheelchairs in any
area open to pedestrian use.
Must also allow individuals with mobility
disabilities to use manually-powered mobility
aids (includes include walkers, crutches, canes,
braces, or other similar devices) in areas open to
pedestrian use.
21
Other Power-Driven Mobility Device
(OPDMD) Defined
“[A]ny 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.”
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Definition of “OPDMD,” Continued
Includes:

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Golf cars;
Electronic personal assistance mobility devices
(e.g., Segway®); or
Any mobility device that is not a wheelchair
that is designed to operate in areas without
defined pedestrian routes.
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Use of OPDMDs
§ 35.137 (title II); § 36.311 (title III)

Covered entities 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.
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Reasonable Modifications Regarding
OPDMDs
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Burden on entity to show it is not reasonable to
allow OPDMD on premises or portion of
premises.
Assessment is made regarding the class of
devices, instead of an individual's use of the
device.
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OPDMD Assessment Factors

Covered entities must consider specific
assessment factors to determine whether a
reasonable modification can be made.
Type, size, weight, dimensions and speed of
device;
 Facility’s volume of pedestrian traffic;
 Facility’s design and operational
characteristics;

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OPDMD Assessment Factors
Whether legitimate safety requirements can
be established to permit safe operation of the
OPDMD in the specific facility; and
 Whether there is a substantial risk of
substantial harm to immediate environment or
natural or cultural resources; conflicts with
Federal land management laws and
regulations.

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Legitimate Safety Requirements
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Described in § 35.130, new for Title II entities.
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Legitimate safety requirements necessary for safe
operation are permissible.
Must be based on actual risks, not on mere
speculation, stereotypes, or generalizations about
individuals with disabilities.
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Impermissible Questions
Entities may not ask an individual using a
wheelchair or other power-driven mobility device
questions about the nature and extent of the
individual’s disability.
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Permissible Questions
The rules allow covered entities to ask persons
using an other power-driven mobility device to
provide a “credible assurance” that the device is
required because of the person’s disability.
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Credible Assurance
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A valid, disability parking placard or card, or
other State-issued proof of disability: one that is
presented by the individual to whom it was
issued and is otherwise in compliance with the
State of issuance’s requirements.
In lieu of valid placard, card, or other Stateissued proof of disability, verbal representation,
not contradicted by observable fact, that the
OPDMD is being used because of a mobility
disability.
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Communications and
Auxiliary Aids and Services
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General Rule: Title II
“A public entity shall take appropriate steps to
ensure that communications with applicants,
participants, members of the public, and
companions with disabilities are as effective as
communications with others.”
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General Rule: Title III
“A public accommodation shall take those steps
that may be necessary to ensure that no
individual with a disability is excluded, denied
services, segregated or otherwise treated
differently than other individuals because of the
absence of auxiliary aids and services….”
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Individuals with Disabilities
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Individuals who are deaf or hard of
hearing;
Individuals who are blind or have low
vision; and
Individuals who have speech-related
disabilities.
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Effective Communication
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§ 35.160 Title II (“Communications”)
§ 36.303 Title III (“Auxiliary Aids and Services”)
Definition of auxiliary aids revised to include
additional examples such as:
 Accessible electronic and information
technology.
 Qualified interpreters on-site or
through video remote interpreting services.
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Other Examples. . .
Other examples of auxiliary aids and
services:
 Voice, text, and video-based
telecommunications products and
systems.
 Braille or tactile displays.
 Screen reader software.
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Qualified Reader
“Qualified reader” defined as “…a person
who is able to read effectively, accurately,
and impartially, using any necessary
specialized vocabulary.”
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Qualified Interpreter
“Qualified interpreter” defined as “An
interpreter who, via video remote
interpreting (VRI) service or an on-site
appearance, is able to interpret effectively,
accurately, and impartially, both receptively
and expressively, using any necessary
specialized vocabulary…”
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Types of Auxiliary Aids or Services:
Factors to Consider
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Type of auxiliary aid or service will vary in
accordance with:
 Method of communication used by individual;
 Nature, length, and complexity of
communication involved; and
 The context in which communication is taking
place.
Provide auxiliary aids in accessible formats, in
timely manner, and in manner that protects
privacy and independence of individual.
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Revisions to Effective
Communication Requirements
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Companions with disabilities.
Discussion of types of auxiliary aids and services
that are necessary to ensure effective
communication.
Limitations on use of individual accompanying
person with a disability as an interpreter.
Performance standards for video remote
interpreting services.
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Companions
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Covered entities must communicate
effectively with companions with disabilities,
as appropriate.
Companion defined as “family member,
friend, or associate of an individual seeking
access to a service, program or activity of a
public entity, who along with such individual is
an appropriate person with whom the public
entity should communicate.”
42
Video Remote Interpreting
Definition:
“An interpreting service that uses video
conference technology over dedicated lines
or wireless technology offering high-speed,
wide-bandwidth video connection that
delivers high-quality video images…”
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Video Remote Interpreting:
Standards
DOJ standards require:
 Quality of video and audio that is high quality,
clear, real-time, with clear uninterrupted
images;
 Dedicated high-speed connection;
 Picture: Clear, sufficiently large, and sharply
delineated, showing face, arms, hands and
fingers;
 Voices: clear and easily understood
transmission; and
 Quick set-up and training of users.
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Use of Adults Accompanying
Individual With a Disability
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Public entities shall not require individual to bring
own interpreter.
Public entities shall not require adults
accompanying individual to interpret except:
 In emergency involving imminent threat to
safety or welfare of individual or public and no
interpreter available, or
 Where specific request by person with
disability, accompanying adult agrees, and
reliance on that person is appropriate under
circumstances.
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Use of Children as Interpreters
Only permissible in emergency involving
imminent threat to safety or welfare of an
individual or the public where there is no
interpreter available.
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Service Animals
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Service Animals
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Revises “service animal” definition in title III;
Adds “service animal” definition and service
animal provisions to title II; and
Codifies a variety of the Department’s
longstanding policies and interpretations
regarding service animals.
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Definition of Service Animal
(§ 35.104 in Title II and § 36.104 in Title III)
“Service animal means any dog that is
individually trained to do work or perform
tasks for the benefit of an individual with
a disability, including a physical, sensory,
psychiatric, intellectual, or other mental
disability… The work or tasks performed
by a service animal must be directly
related to the individual's disability…”
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What does this mean?
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Limits the species of service animals to
dogs;
Makes clear that comfort or emotional
support animals are not covered; and
Makes clear that individuals with physical,
sensory, psychiatric or other mental
disabilities can use service animals.
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Definition: Species Limitation
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Service animals are now limited to one
species — dogs.
The definition provides that other animals
besides dogs, whether wild or domestic,
do not qualify as service animals.
The Department’s rules do not affect
coverage of other animals under other
laws, like the Fair Housing Act or Air
Carrier Access Act.
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Definition: Do Work or Perform
Tasks
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Requires that the dog be individually
trained to do work or perform tasks.
The work or tasks performed by a service
animal must be directly related to the
individual's disability.
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Definition: Do Work or Perform
Tasks ……. Continued
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Includes a non-exhaustive list of examples of
work and tasks, such as retrieving items,
e.g., medicine or telephone.
Covers individuals with psychiatric,
intellectual, or other mental disability that
use service animals.
Example: Helping persons with psychiatric and
neurological disabilities by reminding to take
medication, preventing or interrupting impulsive
or destructive behaviors.
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Emotional Support Animals
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Because service animals must do work or
perform tasks, emotional support and
comfort animals are not included in the
definition of service animal.
The provision of emotional support,
well-being, comfort, or companionship do not constitute work or tasks
for the purposes of the service
animal definition.
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Revisions to General
Service Animal Provisions
§ 35.136 (title II); § 36.302(c) (title III)
Overview of changes:
 Provides when a service animal can be
excluded.
 Requires animal to be under handler’s control.
 Provides guidance on inquiries.
 Care and supervision.
 Access to all areas open to public.
 Surcharges.
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Exclusion of Service Animals
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General rule is that covered entities must permit
service animals. The revised rules, however,
add two specific exceptions for when service
animals can be excluded:
 The animal is out of control and the handler
does not take effective action to control it; or
 The animal is not housebroken.
The handler should be given the opportunity to
participate without the animal.
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“Under Handler’s Control”
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Must have harness, leash, or other tether.
If handler is unable to use these because of his
or her disability or because use would interfere
with the safe and effective performance of work
or tasks, then the animal must otherwise be
under the handler’s control ( i.e., voice control,
signals, or other effective means.)
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Permissible Inquiries
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Only two inquiries may be made by
covered entities:
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Whether the animal is required because of a
disability; and
What work or task the animal has been
trained to perform.
Generally, inquiries may not be made when it
is readily apparent that an animal is trained
to do work or perform tasks for an individual
with a disability.
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Miscellaneous Provisions
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Covered entities are not responsible for the
care or supervision of a service animal.
Service animals may accompany their
handlers to areas of a public accommodation
or public entity.
Covered entities may not require people with
disabilities to pay pet fees or surcharges that
are not applicable to individuals without pets.
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Beyond Service Animals
Miniature Horses
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Miniature Horse
Requirements
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Rules require reasonable modifications to permit
a miniature horse that has been individually
trained to do work or perform tasks.
Rules provide assessment factors to assist
entities in determining whether reasonable
modifications can be made.
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Miniature Horses
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Miniature horses range in weight from 70 to 100
pounds.
Miniature horses can range in height from 24 to
34 inches.
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Assessment Factors
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The type, size, and weight of the horse and
whether the facility can accommodate those
features.
Handler has sufficient control of the horse.
Horse must be housebroken.
Whether the horse’s presence in a specific
facility compromises legitimate safety
requirements.
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Other Requirements for
Miniature Horses

§ 35.136(c)-(h)’s and
§ 36.302(c)(3)-(8)’s
service animal
requirements also
apply to miniature
horses.
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Admit person with a
disability even if
animal is properly
excluded.
Care and supervision.
Inquiries.
Access to all public
areas.
Surcharges.
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Ticketing:
A VERY Brief Overview
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Ticketing: General Provisions
§ 35.136 (title II); § 36.302(c) (title III)
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Policy is not new - always been our
understanding that ticketing policies are
covered to provide equal opportunity.
However, policy had never been fully
articulated in one document before.
Why?
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Who Can Purchase a Seat?
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Individuals who use wheelchairs;
Individuals with other mobility disabilities who
cannot walk for long distances (cardiac,
respiratory, circulatory conditions; severe
arthritis); and
Others who require the features of accessible
seat (i.e., service dog user whose dog cannot fit
under a non-accessible seat or would obstruct
the aisle).
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Overview of Ticketing Provisions
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Ticket sales: tickets for accessible seats
must be sold in the same manner and under
the same conditions as all other ticket sales.
Information about where accessible
seats are located: must provide the same
information about accessible seats as
provided about non-accessible seats, using
the same text and visual representations.
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Ticketing Provisions – Cont’d
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Ticket prices: May not charge higher prices
for accessible seats than for non-accessible
seats in the same seating section.
Purchasing multiple tickets: People
purchasing an accessible seat may purchase
up to three additional seats for their
companions in the same row and contiguous
with the accessible seat. Accessible seats
may be used as companion seats.
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Ticketing Provisions – Cont’d
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Hold and Release of tickets for
accessible seating: Unsold accessible seats
may be released and sold to the general
public only in three specific circumstances.
Ticket transfers: An individual with a ticket
for an accessible seat may transfer it to
anyone, including someone who does not
have a disability.
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Ticketing Provisions – Cont’d

Secondary ticket market: Must allow
individual with a disability who has purchased
a non-accessible seat through the secondary
market to exchange the ticket for a
comparable accessible seat, if available. May
move someone, but not required to do so.
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Ticketing Provisions – Cont’d

Fraud: Venues cannot require proof of disability
as a condition for purchasing tickets for
accessible seats. However, venues …..
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May ask purchasers to attest to the need for the
accessible seat.
May also mark tickets to clearly identify that they are
for accessible seats.
May investigate the potential misuse of accessible
seats where there is good cause to believe that
seating was purchased fraudulently.
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Resources
Regulations, appendices, standards are available at
DOJ’s ADA web site at www.ada.gov.
For answers to specific questions, DOJ toll-free ADA
information line:
800-514-0301 (Voice)
800-514-0383 (TTY)
Mid-Atlantic ADA Center(DBTAC):
800-949-4232 (Voice/TTY)
www.adainfo.org
U.S. Access Board web site:
www.access-board.gov
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