Transcript Implementing the “New” ADA and DOJ Regulations

Implementing the “New” ADA
and DOJ Regulations
A Policy Tele-Institute for Higher
Education
1
Session 3: Program Access and
Policy Changes under the New
Regulations
Presenters
Irene Bowen, ADA One, LLC
L. Scott Lissner, The Ohio State University
November 16, 2010
2
Presenters
Irene Bowen, J.D.
•President of ADA One, LLC
•AHEAD presenter and trainer (national, state)
•Board member, National Association of ADA Coordinators
•Part-time senior policy advisor with LCM Architects
•City of Chicago title II plan
•Higher education: reviews and plans
•Former Deputy Chief, Disability Rights Section, DOJ
•Former Deputy General Counsel, US Access Board
•Co-founder, National Center for Law and Deafness
3
Presenters
L. Scott Lissner
The Ohio State University
•
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
AHEAD
• President Elect
• Co-Chair, Public Policy & Government Relations Committee
OTHER
• Appointed, Ohio Governor's Council For People With Disabilities
• Chair, ADA-OHIO
• Appointed, State HAVA Committee
4
• Appointed, Columbus Advisory Council on Disability
OVERVIEW: What has changed?
•
•
•
•
•
•
New Building Standards
Service animals
Mobility devices
Communication
Hotel reservations
Event ticketing
5
What are the challenges?
• Learning the new Regulations
• Learning the 2010 Standards: More than
ADAAG
• Collaborating with others to modify
policies
• The next two “March Fifteenths”
6
Change Cycle
1. Review the changes
2. Work with those affected: planners,
facilities, residential life, athletics, IT,
academic affairs, ….
3. Take stock and organize training
4. Identify choice points and inform decision
makers
5. Implement new policy
7
Programs and Program Access
• Guidance for Policy & Implementation in
the Preamble & Analysis
• What is a Program?
• What is Program Access?
• Who are Program Participants?
• Recruiting Your Partners
8
APPROACH TO FACILITIES
• What Standards to Use When
• Safe Harbors for Program Access
• An Opportunity to Take Stock: Assessing
Facilities
• Partners On & Off Campus
9
Time frames for facilities
“Compliance date”: 18 months
after publication
• March 15, 2012
• New construction and alterations
MUST comply with the Standards (triggers similar to
1991’s)
• In the meantime, choose a standard
- Title III: 1991 or 2010 Standards
- Title II: 1991 Standards, 2010 Standards, or UFAS
(Uniform Federal Accessibility Standards)
• Sections 35.151(c), 36.406(a)
10
•
Existing facilities and change of
standards
Change of standards: implications for
–
–
•
•
Program access
Barrier removal
As of March 15, 2012, new measure of what’s a
barrier and what’s an accessible facility (i.e., 2010
Standards)
BUT if element already complies with UFAS (for title
II) or 1991 Standards (and you don’t alter it), it’s still
ok after March 15, 2012
–
–
It gets a “safe harbor”
That is, it doesn’t have to be altered just for the sake of
program access or barrier removal.
11
Elements not protected by the
safe harbor
•
•
•
•
•
Golf and miniature golf facilities
Play areas
Residential facility dwelling units
Exercise machines and equipment
Other recreation facilities
12
…Elements not protected by the
safe harbor
• Saunas and steam rooms
• Swimming pools,
wading pools,
spas
• Miscellaneous: team or
player seating, accessible
route to bowling lanes,
accessible route
in court sports facilities
13
Program access and safe harbor:
action steps
Evaluate
elements
that are
subject to
safe
harbor
Complying
elements:
Document
compliance
with 1991
Standards (or
UFAS)
Noncomplying
elements:
Bring up to
standards
OR
use alternative
means of
providing
program access
14
Program access and safe harbor:
tips
•
•
•
If resources or other limitations prevent changes
before March 15, 2012, remember that you will
have to use 2010 Standards when making later
changes
Local codes may not allow use of 1991 Standards or
UFAS for alterations, even for this purpose
Sounds like a self-evaluation and transition plan?
This could be a good time for that.
15
…Program access and safe harbor:
tips
• Section 504 also requires program
access
– Section 504 regulations are not yet updated
(deemed to comply if follow UFAS)
– Expectations, per DOJ:
• Guidance before March 15, 2011
• Following ADA regulations will bring into
compliance with section 504
16
Facilities not subject to safe harbor
Evaluate
facilities/elements
not specifically
included in 1991
Standards/UFAS
Alter
them per
2010
Standards
OR
use
alternate
means to
provide
program
access
For new
construction
and
alterations
(even before
2012), use
2010
Standards
17
Barrier removal: Title III
•
•
•
•
•
Follow similar approach
Barrier removal requires an assessment of each
facility to identify and remove barriers where it
is readily achievable to do so
DOJ recommends implementation plan and
ongoing method of assessing compliance
Safe harbor protections are also element-byelement for title III entities
Starting March 15, 2012, must use 2012
Standards, which may be more costly
18
Campus housing
• New definition of housing at a place of education
in 35.104, 36.104 includes dormitories, suites,
apartments, etc.
• Two categories, 36.406(e)
– Residence halls and similar: comply with transient
lodging requirements, 224 and 806
– Apartments or townhouses leased year-round to
graduate students or faculty (if no areas for
educational programming): comply with residential
facility standards, 223 and 809
19
…Campus housing
Differences between standards
• Transient
– Usually smaller number accessible rooms
– But more accessibility for people with hearing
impairments
– Some roll-in showers
– Elevators to all levels
• Residential
–
–
–
–
Usually elevator not required
No roll-in showers required
Adaptable features allowed
5% of units accessible
20
…Campus housing
In addition, per DOJ
• When mobility-accessible unit or floor with such
units has a kitchen, kitchen shall have turning spaces
and accessible work surfaces that comply with
809.2.2 and 804.3
• Multi-bedroom units with mobility-accessible
sleeping rooms shall have accessible route
throughout units per 809.2
• Sections 36.406(e), 35.151(f)
21
POLICIES
22
Policies: by March 2011
Significant changes to address
•
•
•
•
•
Effective communication
Service animals
Ticketing for events
Hotel reservations (by
March 2012)
Mobility devices
23
EFFECTIVE COMMUNICATIONS
•
•
•
•
•
Deference to the Individual
Standard for Remote Services
Standard for Effective Readers
Are Notes a Form of Communication
Does Mediating Technology Factor Into
Effective Communication?
• Who Do I Go to if I Can’t Spell HTML
24
§ 36.303 & § 35.160
Effective Communication
• includes an obligation to provide effective
communication to companions
– Title II “as effective as” Title III Effective
• Automated-attendant systems (e.g. voicemail
or an interactive voice response systems) must
provide effective real-time communication
with individuals using auxiliary aids and
services, including text telephones, all forms
of FCC-approved telecommunications relay
systems and Internet-based relay systems
25
Video Remote Interpreting
– Real-time, full-motion video and audio over a
dedicated high-speed, wide-bandwidth video
connection or wireless connection that delivers highquality video images that do not produce lags,
choppy, blurry, or grainy images, or irregular pauses
in communication;
– A sharply delineated image that is large enough to
display the interpreter´s face, arms, hands, and
fingers, and the participating individual´s face, arms,
hands, and fingers, regardless of his or her body
position;
– A clear, audible transmission of voices; and
– Adequate training to users of the technology and
other involved individuals so that they may quickly
and efficiently set up and operate the VRI.
26
§ 36.104 Qualified Reader
• A person who is able to read effectively,
accurately, and impartially using any necessary
specialized vocabulary
• Reader or interpreter as benchmark for note
takers
– Qualified interpreter means an interpreter who, via a
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. Qualified
interpreters include, for example, sign language
interpreters, oral transliterators, and cued-language
transliterators.
27
SERVICE ANIMALS
• It’s a Dog’s Life!
• What you can Ask & Boundaries You Can Set
• Is Housing Different? Cats, Parrots and Ferrets
Oh My!
• Miniature Horses
• Working with Residence Life &
Campus Security
28
Develop policies reflecting new
regulations
• Published policy for nonresidential
areas:
– Dogs only
– Work or tasks for individual with
disabilities
• Includes people with various types of
disabilities
• Not emotional support animals
– Control and care by handler
– Locations of rest areas (not required
under ADA)
• Consider more detailed internal
directives as well
29
Staff directives
• Only two permissible inquiries:
– Is this a service animal required because of
disability?
– What work or tasks is the animal trained to
perform?
30
…Staff directives
• Can’t ask about
disability
• Can’t request
documentation
• Tasks can be for
people with physical,
sensory, psychiatric,
intellectual, or
mental disabilities.
31
...Staff directives
• Examples of types 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
32
…Staff directives
• Under ADA, if only purpose is emotional
support, comfort, companionship, not a
“service animal”
• No surcharges
• Allow handler even if animal is excluded
• Particular considerations in health care
• Examples of situations
33
…Staff directives
• Guidance about what to do about “control”
issues
• An entity can exclude a service animal if
• it is not controlled or
• it is not housebroken
• More than one chance
• Provocation
• College/university is not responsible for care or
supervision of a service animal
• Examples of situations
34
Service Animals: Other laws and
requirements
•
Other laws or codes may call for
admission of animals -• Other than dogs
• That provide emotional support
or comfort
•
Examples
•
•
•
HUD (residence halls)
DOT (transportation)
State/local requirements
35
…Service Animals: Other laws and
requirements
• DOJ: ADA rules don’t affect
coverage of other animals
under other laws
• Higher education: FHAA and
section 504 go “beyond” ADA
– Allow emotional support animals
– Allow more intrusive questions
• Air Carrier Access Act is similar
36
Miniature Horses
• Make reasonable modifications to permit if
appropriate
• Allowed if
– Reasonable
– Individually trained
37
…Miniature Horses
• Use assessment factors
– Type, size, weight (whether facility can
accommodate)
– Handler’s control
– Whether housebroken
– Legitimate safety requirements of specific facility
38
…Miniature Horses
• Many service animal provisions also apply
– Admit individual without animal
– Care and supervision
– No surcharges
• Other laws may apply
39
Animals in housing
• Consider separate policies for housing vs.
other facilities
• Some animals that are allowed in residential
settings may not be appropriate in classes and
other settings – and vice versa
• Be aware of state/local requirements, licenses
and certifications
• Consider how much is public policy and how
much is internal guidance
40
Sections of regulations
• Title II: Sections 35.104, 35.136
• Title III: Sections 36.104, 36.302(c)(2)-(9)
41
TICKETING & RESERVATIONS
• Selling Accessible Seats
• Is there Room at the Inn?
• Assisting Athletics and Auxiliary services
42
§ 35.138 & § 36.302 Ticketing
•
•
•
•
•
Sales during the same hours
During the same stages of ticket sales
Through the same methods of distribution
In the same types and numbers outlets
Under the same conditions
43
Ticketing
• Hold and Release
• Secondary Market
• Prevention of Fraud
–Singel Event
–Series
–Investigations
44
Ticketing
• Tickets for accessible seating priced the same
as other tickets
• Tickets for accessible seating must be made
available at all price
• If accessible seating at a particular price level
is not available because of inaccessible
features, then the percentage of tickets for
accessible seating that should have been
available at that price level shall be offered for
purchase, at that price level, in a nearby or
similar accessible location.
45
§ 36.302 Reservations
• Ensure that individuals with disabilities can
make reservations for accessible guest rooms
during the same hours and in the same
manner as individuals who do not need
accessible rooms
• Describe accessible features in the hotels and
guest rooms in enough detail to permit
individuals with disabilities to assess
independently whether a given hotel or guest
room meets his or her accessibility needs
46
Reservations
• Ensure that accessible guest rooms are held for
use by individuals with disabilities until all other
guest rooms of that type have been rented
• Reserve, upon request, accessible guest rooms or
specific types of guest rooms and ensure that the
guest rooms requested are blocked and removed
from all reservations systems
• Guarantee that the specific accessible guest room
reserved through its reservations service is held
for the reserving customer, regardless of whether
a specific room is held in response to reservations
made by others
47
MOBILITY DEVICES
•
•
•
•
General Policy for Wheelchairs
Segways, Golf Carts & Other Mobility Devices
Setting the boundaries
Transportation & Parking, Campus Security or
Both?
48
Two tiers of devices
Manually powered mobility devices
• Wheelchairs, walkers, crutches, canes,
braces
Other power-driven mobility
devices
• Devices not necessarily designed for use by
people with disabilities
49
…Two tiers of devices
• Use of manually powered mobility devices
must be permitted -– by individuals with mobility disabilities
– in any area open to pedestrian use.
• New category: other power-driven mobility
devices (OPDMD’s)
Sections 35.104, 35.137, 36.104, 36.311
50
Other Power-Driven Mobility Device
(OPDMD)
“[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.”
51
Use of OPDMD’s
•
Must make reasonable modifications to permit
use by people with mobility disabilities
• Burden is on entity to demonstrate
use is not reasonable: that
the class of OPDMD cannot
be operated in accordance
with legitimate safety
requirements adopted by
the entity.
52
OPDMD Policies: DOJ guidance
• Develop policy
– Clearly state circumstances under which
permitted (follow assessment factors)
– Specific rule
– Procedure for assessment
– Consider grouping by type
– Example: GSA policy (see p. 56200 of Federal
Register notice)
• Give advance notice of policy
53
OPDMD Assessment Factors
1. Device: type, size, weight, dimensions, and
speed
2. Facility’s volume of pedestrian traffic
3. Facility’s design and operational
characteristics
–
–
–
–
indoors/outdoors
square footage
density and placement of stationary devices
availability of storage
54
…OPDMD Assessment Factors
4.
Whether use creates a substantial risk of
serious harm to
– the immediate environment or
– natural or cultural resources
5. Whether use poses a conflict with Federal
land management laws and regulations.
Sections 35.137(b)(2) and 36.311(b)(2)
55
Limits on inquiries
• Can request a “credible assurance” that
an OPDMD is required because of the
person’s disability.
– Give examples in policy: placard, I.D.
• May not ask about nature and extent of
disability.
56
SAFETY & DIRECT THREAT
• Setting Speed Limits and Safety Analysis
• Codifies past guidance
• Working With Campus Risk Management
Groups
57
§ 35.139 Direct Threat
• (b) In determining whether an individual poses
a direct threat to the health or safety of others,
a public entity must make an individualized
assessment, based on reasonable judgment
that relies on current medical knowledge or on
the best available objective evidence, to
ascertain: the nature, duration, and severity of
the risk; the probability that the potential
injury will actually occur; and whether
reasonable modifications of policies, practices,
or procedures or the provision of auxiliary aids
or services will mitigate the risk.
58
§ 35.130 Direct Threat
• A public entity may impose legitimate safety
requirements necessary for the safe
operation of its services, programs, or
activities. However, the public entity must
ensure that its safety requirements are based
on actual risks, not on mere speculation,
stereotypes, or generalizations about
individuals with disabilities.
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
(revised)
60
QUESTIONS AND ANSWERS
61
CONTACT
Irene Bowen, J.D.
President, ADA One, LLC
9 Montvale Court
Silver Spring, MD 20904
Web site: http://ADA-One.com
Email: [email protected]
301 879 4542 (O)
301 236 0754 (F)
62
CONTACT
L. Scott Lissner,
ADA Coordinator, The Ohio State University
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)
63
Other opportunities
NAADAC webinars
• November 17: ADA Standards - Toilets, Bathing, Kitchens, &
Plumbing Elements
• December 1: ADA Standards - Specialized Rooms, Spaces &
Elements Incl. Residential & Rec.
• All seven sessions available on CD and for MP3, etc.
To register and for more information:
http://www.krm.com/NAADAC (direct registration) or
http://askjan.org/naadac/ (NAADAC website)
Next NAADAC conference (four days of training): April 11-14,
2011, Miami, FL
Information available in mid-December at NAADAC’s website:
www.NAADAC.info
64
Next tele-institute session
• Session 4 – Establishing Policy, Practice and
Resources for Virtual Environments
Tuesday, November 30, 2010
65