Transcript Slide 1

DEMYSTIFYING THE ADAAA,
ADAAG, AND OTHER LAWS AND
REGULATIONS:
Mid-year Disability Law Update
March 4, 2010
Irene Bowen, J.D.
ADA One, LLC
Jo Anne Simon, J.D.
Jo Anne Simon, P.C.
1
Irene Bowen, J. D.
DOJ (Former Deputy Chief, DRS)
 Higher Ed initiative (U of Chicago,
Colorado College, Swarthmore, EDMC)
 Regulations (1991 and proposed)
 Enforcement of titles II and III
ADA One, LLC: Consultant
 Training, speaking (AHEAD, NAADAC, AIA, NACUA,
state and local governments)
 Advise on ADA, ABA, section 504
 Authoring guide on ADA compliance by nonprofits
(summer 2010)
LCM Architects: Senior Policy Advisor
City of Chicago self-evaluation and transition plan
Hotels
Higher education
2
Jo Anne Simon, J.D.
Educator:
Teacher of the Deaf
Disability Services provider, Gallaudet University
Hofstra Law School Disabilities Clinic
Assoc Prof, Fordham Law School
Lawyer:
Bartlett v. NYS Board of Law Examiners
Disability Rights in Higher Education &
Standardized Testing
Training, Speaking, Writing
General Counsel, AHEAD
President, IDA-NY
Professional Advisory Board, LDAA
3
Agenda
• A primer: Swallowing the alphabet soup of agencies,
laws, and regulations
• DOJ’s proposed ADA regulations
• The ADA Amendments Act
• The testing provisions of DOJ’s proposed title III
regulation
• How to prepare
4
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.
5
PART ONE
A PRIMER:
Swallowing the alphabet soup
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Swallowing the alphabet soup:
agencies, laws, and regulations
7
…Swallowing the alphabet soup
DOJ is doing rulemaking under the ADA.
– The Americans with Disabilities Act as it existed
before the ADA Amendments Act, which became
effective January 1, 2009.
– The rules are proposed, not final.
8
…Swallowing the alphabet soup
The EEOC is doing rulemaking under the ADAAA.
– The ADAAA reset coverage of individuals under the
ADA (definition of “disability”).
– The rules are proposed, not final.
Both EEOC and DOJ have issued notices of
proposed rulemaking (NPRM’s).
9
…Swallowing the alphabet soup
The Access Board issued ADAAG.
– The ADA Accessibility Guidelines of 2004 are final
guidelines.
– They are not binding until an agency adopts them as
a standard.
– DOJ has proposed to adopt them as ADA standards.
10
2008: DOJ proposed rules in the news
“Businesses Face Push to Expand Disabled Access;
…Rules May Spur Backlash”
-- The Wall Street Journal
“Plan Seeks More Access for Disabled”
-- The New York Times
“… Regulations Would Ease Up on Colleges' Responsibilities”
-- Chronicle of Higher Education
-- Blog of House Speaker Nancy Pelosi
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Highlights of proposal
• Two proposed ADA regulations
– Title II (state and local governments) and
– Title III (private entities, testing entities,
commercial facilities)
• First major revision since 1991 (original
regulation)
12
…Highlights of proposal
• Would adopt new accessibility standards
– 2004 ADA Accessibility Guidelines (ADAAG)
– Issued by U.S. Access Board, as ADA accessibility standards
– DOJ supplements them
• Would update/address/expand provisions on
–
–
–
–
–
–
service animals
use of Segways® and similar devices
ticketing policies for assembly areas
program accessibility
testing
effective communication
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Time line and predictions
• June 2008: Department of Justice published
two notices of proposed rulemaking
• Fall 2008: DOJ drafted final rules
• January 2009: DOJ withdrew ADA rules
• October 2009: AAG for Civil Rights, Tom Perez,
confirmed
• As of January 26, 2010: Final regulations
under DOJ consideration
14
…Time line and predictions
• Draft final rules subject to OMB review
• Final in 2010?
15
THE ADA AMENDMENTS ACT OF 2008
In 2008, Congress set the record straight
about its intentions regarding protections
for people with disabilities
16
The ADA Amendments Act provides
enhanced protections for:
• Individuals with a physical or mental impairment
that substantially limits them in one or more
major life activities
• Individuals who have a record of disability
• Individuals who are regarded as being disabled
17
Why? What went wrong?
• Federal courts interpreted the words “a physical or mental
impairment that substantially limits one or more major life
activity” very narrowly
• Measures that mitigated the effects of a disability were
considered, and if adaptive measures were too successful, the
individual was not protected
• People whose symptoms were evolving or episodic were not
protected from discrimination
18
Cases that limited the ADA’s
protections:
• Sutton v. United Air Lines (U.S.
Supreme Court, 1999) held that
any mitigating measures
undertaken must be considered
along with any substantial
limitations, and if the mitigating
measures “corrected” the
limitation, the person was not
disabled under the ADA
19
Cases that limited the ADA’s
protections:
• Toyota Motor Manufacturing,
Kentucky, Inc v. Williams (U.S.
Supreme Court, 2002) ADA
protection required that a
“strict and demanding
standard” be applied
• major life activities were those
“that are of central importance
to most people’s daily lives”
20
Cases that limited the ADA’s
protections:
• Gonzalez v. National Board of Medical
Examiners (U.S. Court of Appeals for the 6th
Circuit) under Sutton analysis, a medical
student who had been able to
compensate for his disability in the
past was not protected by the ADA in
seeking accommodations on the U.S.
Medical Licensing Examination
21
The Equal Employment Opportunity Commission’s
regulations were also overly restrictive
• The term “substantially limits” means:
– (i) Unable to perform a major life activity that the average
person in the general population can perform; or
– (ii) Significantly restricted as to the condition, manner or
duration under which an individual can perform a
particular major life activity as compared to the condition,
manner, or duration under which the average person
in the general population can perform that same major
life activity. 29 C.F.R. § 1630.2(j)(1)
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The EEOC was instructed to revise its
regulations
• The EEOC’s definition of
“substantially limits” as
“significantly restricts” is too
limiting and leaves out
disabled individuals who are
entitled to the ADA’s
protections
• Fall 2008, initial NPRM issued
• Jan 22, 2009, rules withdrawn
• Revised NPRM issued Sept 23,
2009
• Comments due Nov. 23, 2009
• Final Rules ??????
23
Higher Education Opportunity Act
(Reauthorizes the Higher Education Act of 1965)
Addresses financial access to postsecondary
education
AHEAD sought to ensure equality of financial
aid access for students taking reduced
course loads as accommodations
for their disabilities
Final regulations take effect July 1, 2010
PART TWO
DOJ’S PROPOSED REGULATIONS:
POLICY AND COMMUNICATION
25
DOJ’S PROPOSED REGULATIONS:
Yes, there’ll be new standards….
But it’s not just about buildings
26
Service animals
Sections 35.104, 35.136, 36.104,
36.302 (c) (2) – (8)
Definition: an animal that
does work or performs tasks
for the benefit of an individual
with a disability (including
psychiatric, cognitive, mental)
M. COLLEEN MCDEVITT, Columbiamissourian.com
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…Service animals
• Tasks:
• Assist during seizure
• Retrieve medicine or other
objects
• Help individual with
dissociative identity disorder
to remain grounded
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…Service animals
• Types: Dog or other
common domestic
animal
(no wild or farm animals,
no monkeys, no reptiles)
Jeff Riedel for The New York Times
29
…Service animals
• Emotional support or comfort: if this is the only
function, not considered a service animal
• Other agencies may differ
(employment, housing,
Air Carrier Access Act,
state/local)
Dilip Vishwanat/Getty Images, for The New York Times
30
Power-driven mobility devices
Sections 35.137, 36.104
• Issues
• When they must
be permitted
• What inquiries
can be made
31
…Power-driven mobility devices
• Follow “reasonable modification” framework
• Consider
• Dimensions, etc. compared to wheelchairs
• Risk to others
• Risk to environment
• Ability to stow when not in use
• Can ask if needed due to disability
32
Segway® lawsuit (Disney World)
Decision in Ault, et al v. Walt Disney World Company
(M.D. Fla. October 6, 2009)
• The particular named plaintiffs can
and sometimes do use wheelchairs
and scooters
• For them, the use of Segways® was
not “necessary” for access to the park
(a preference; they could still access
the park)
• They lacked standing to challenge the
Segway® ban under the “reasonable
modifications” section of the ADA.
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Effective communication
Sections 35.104, 35.160, 35.161, 36.104, 36.303
• Additions to examples of auxiliary aids and
services
• Exchange of written notes
• Accessible electronic and information
technology
• Computer-aided transcription services
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…Effective communication
• Other examples of auxiliary aids and services
• Brailled displays
• Screen reader software
• Video interpreting
services (VIS)
• Standards for
performance
35
…Effective communication
• “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
…Effective communication
• 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
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…Effective communication
• Automated attendant
systems, if provided, must
provide effective
communication
• Entity must answer TTY
relay calls in same manner
as it answers others
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Event ticketing policies, 36.302 (f)
•Distribution outlets
•Clear seating charts
•Ticket transfers
•“Sell outs”
and accessible seats
•Equivalent pricing
and access limitations
•Verification
•Captioning at large venues
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What’s so controversial?
• Some businesses object to the proposed accessibility
standards
• More detailed
• Often more strict
• Claimed to be more costly
• Some businesses question the
method of analyzing costs
and benefits (Appendix B: RIA)
40
…What’s so controversial?
• Chronicle focused on the “looser”
requirements:
• Fewer accessible seats required in assembly
areas
• Limits on service animals
• Some advocates say proposal would lead to
less enforcement, weakened program access,
limitations on service animals
41
How to get a grip (on the rules)
• The rules themselves (DOJ)
Proposed regulatory language: 12 pages
(about half is about facilities)
• The preamble/explanation
• Comes before each rule
• 40 pages and 60 pages respectively
• DOJ asked 111 specific questions for
comment
42
Two documents to know
DOJ’s proposed ADA
rules (titles II and III)
Access Board’s 2004
accessibility guidelines
(proposed standards)
43
…How to get a grip (on the rules)
• The proposed standards (Access Board, i.e.
2004 ADAAG)
• These were not republished in June 2008
• See www.Access-Board.gov or link at
www.ada.gov
• Read everything together
44
PART THREE
DOJ’S PROPOSED REGULATIONS:
BUILDINGS AND FACILITIES
45
New construction and alterations
• Meet new requirements starting six months
after effective date (or within the six months,
by choice)(section 36.406(a))
• Follow new Standards
46
…New construction and alterations
Which standards for title II?
• Currently title II entities can use
• Uniform Federal Accessibility Standards
(UFAS) or
• ADA Accessibility Standards
• With new standards, can no longer choose
UFAS (section 35.151 (c))
Added to title II rules:
• Structural impracticability
• Path of travel
47
Examples of changes to
accessibility standards
• Entrances: scoping, ADAAG 206.4.1
• Parking, ADAAG 208 and 502
• Employee areas, various ADAAG sections, e.g.
203.9, 402.1 and .2, 403
• Assembly areas, ADAAG 221
• Reach ranges (see question 2 in title II NPRM)
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Side Reach Range (308.3)
• Current Standard –
54” max to 9” min
• Proposed Standard
– see diagram at
right
New Maximum
Side Reach Range
– 48”
New Minimum
Side Reach Range
– 15”
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Watercloset Centerline (604)
• Current Standard –
18” centerline
• New Standard – see
diagram at right
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NO “Alternate Stalls”
• Current Standard –
Allows the use of
alternate stalls for
alterations
• New Standard – No
reference to alternate
stalls in alterations
Implications: fewer options
for barrier removal
51
“Path of Travel” requirements
• Title III’s provisions adopted specifically for title II
• If you alter a space, you must also spend up to
20% of the cost of the planned alterations, on
making the “path of travel” to the altered area
accessible:
–
–
–
–
Accessible route
Restrooms
Drinking fountains
Telephones
52
Housing in places of education: Title II
and Title III
Section 35.151(f) and question 42; section
36.406(e) and question 57
• Residence halls, dormitories: apply transient
lodging standards
• Individual apartments, townhouses: apply
residential dwelling standards
53
Program accessibility (title II)
Section 35.150
• Basic requirement stays: programs and
facilities must be accessible in their entirety
• Proposed new safe harbor, section
35.150(b)(2):
Existing facilities that comply with current
requirements would not have to meet the
new standards
54
…Program accessibility (title II)
• “Reasonable number” for program access (question 24) – play
areas
• Drew significant fire from advocates
• Factors:
• Size of entity
• Distance between sites
• Travel times
• Number of sites
• Public transportation
55
Title III (existing facilities)
• Current regulations require “barrier removal” to
extent readily achievable (section 36.304)
• Building-by-building analysis
• “Barriers” are determined by reference to
alterations standards
• Proposed new safe harbor (section 36.304 (d)(2)):
If element complies with existing standards, not required to
comply with revised requirements
56
Maintenance of accessible features
• Sections 35.133, 36.211
• Clarification: isolated or temporary
interruptions are excused
• New provision: If new standards reduce
scoping (i.e., number of accessible elements
required), covered entity can reduce number
accordingly
57
Assembly area seating
• Changes to “scoping”
• Number of accessible wheelchair seating areas
• Direct access to stage from audience area?
• DOJ addresses (35.151.(g), 36.308, 36.406(f))
•
•
•
•
Line of sight
Dispersal
Numbers of accessible companion seats
Assistive listening devices
58
Noticeably absent
• Emergency preparedness
• Assistive technology and electronic
communication, including web sites
• Equipment and furniture
59
And what about section 504?
• DOJ will amend its existing guidelines for
section 504
• Agencies (e.g., D. Ed., HUD, NEA) will issue
revised regulations based on DOJ’s guidelines
• Section 504 and ADA non-employment
regulations are to be consistent with ADAAA
60
DOJ regulatory references
• Existing regulations
• Title II: 28 C.F.R. Part 35
• Title III: 28 C.F.R. Part 36
• NPRMs: 73 Fed Reg 34465-34557 and 3696437055 (June 17 and 30, 2008)
• All available through www.ada.gov
61
PART FOUR
THE ADA AMENDMENTS ACT OF 2008:
Restoring the Letter and the Spirit of
the Law
62
The 2008 Amendments, Updated
Regulations and Standardized Tests
Jo Anne Simon, Esq.
Jo Anne Simon, P.C.
63
Congress explicitly rejected the narrow
approach taken by the courts
• The Supreme Court’s ruling in Sutton impermissibly
narrowed what was supposed to be a broad scope of
protection
• The Supreme Court’s interpretation of “substantial
limitation” in Toyota Manufacturing required a
greater degree of limitation than was originally
intended by Congress
64
and required broadened application
of the law
65
New provisions ensure broad application
• “The definition of disability…shall be
construed in favor of broad coverage…to the
maximum extent permitted…and should not
require extensive analysis” 42 U.S.C. § 12102(4)(A)
• Enhanced and clarified “major life activities”
• An impairment that is episodic or in remission
is a disability if it would substantially limit a
major life activity when active ”42 U.S.C. §
12102(4)(D
66
Major Life Activities
now include, but are not limited to:
•
•
•
•
•
•
•
•
Caring for one’s self
Performing manual tasks
Seeing
Hearing
Eating
Sleeping
Walking
Standing
•
•
•
•
•
•
•
•
•
Lifting
Bending
Speaking
Learning
Reading
Concentrating
Thinking
Communicating
Working
67
Major Life Activities also now include,
but are not limited to, major bodily
functions like:
• Functions of the
immune system
• Normal cell growth
• Digestive functions
• Bladder functions
• Neurological functions
•
•
•
•
•
Brain functions
Respiratory functions
Circulatory functions
Endocrine functions
Reproductive functions
68
Whether an impairment substantially limits a major
life activity must be determined without regard for
mitigating measures like:
•
•
•
•
•
•
•
•
•
Medication
Medical supplies
Equipment
Appliances
Low-vision devices (other than
ordinary eyeglasses or contact
lenses)
Prosthetics (including limbs and
devices)
Hearing aids, cochlear implants
or other implantable hearing
devices
Mobility devices
Oxygen therapy equipment and
supplies
•
•
•
•
Use of assistive technology
Reasonable accommodations
Auxiliary aids or services
Learned behavioral or adaptive
neurological modifications
69
The 2008 Amendments have
major implications for
institutions of higher education
70
The Statement of the Bill Managers for the
Senate bill contained the following language:
“When considering the condition, manner or duration
in which an individual with a specific learning
disability performs a major life activity, it is critical to
reject the assumption than an individual who has
performed well academically cannot be substantially
limited in activities such as learning, reading, writing,
thinking or speaking.”
71
Therefore postsecondary institutions
and testing companies cannot
determine that a student is not
entitled to an accommodation simply
because he has been able to succeed
academically, even without a history
of accommodations.
72
Congress Endorsed the Reasoning
in Bartlett
In colloquy on the floor of the House, Representative
Stark (D.Calif.) confirmed that the decision in Bartlett
v. New York State Board of Law Examiners where the
court ruled that a woman with a learning disability
was protected, despite the fact that she used “selfaccommodations” to achieve academic success, was
consistent with Congressional intent
73
AHEAD submitted joint comments to
the NPRM with organizational
partners:
• Children and Adults with Attention
Deficit/Hyperactivity Disorder
• International Dyslexia Association
• IDA- New York
• Learning Disabilities Association of America
• National Center for Learning Disabilities
• Yale Center for Dyslexia and Creativity
74
Highlights of Comments to the
Proposed Regulations
• EEOC Proposal: “[t]he comparison of an
individual’s limitation to the ability of most
people in the general population often may be
made using a common sense standard, without
resorting to scientific or medical evidence.”
• Comment: Requested an instruction that “this
provision was not meant to support the type of
“common sense” which in the history of our
country has been used to rationalize the myths,
fears and stereotypes of bias”
75
• EEOC Proposed Guidance: [D]isability may be
shown where an impairment is diagnosed, or its
limitations evidenced, by reference to intraindividual differences (i.e., a disparity between an
individual’s aptitude and actual versus expected
achievement), or in comparison to a particular class
of people rather than how the impairment manifests
itself in reference to the general population.
• Comment: Include this in the regulation itself.
76
Key concern
EEOC Proposed: Three categories of
Impairments:
• 1. Impairments that Will Consistently Meet
the Definition of a Disability
• 2. Impairments that May Be Disabling for
Some Individuals But Not for Others
• 3. Impairments that Are Usually Not
Disabilities
77
Group’s Comment
When the diagnostic criteria for AD/HD, LD,
and psychiatric disorders such as panic
disorder and anxiety disorders are compared
to the Commission’s descriptions of each of
the three categories of impairments . . . it
becomes apparent that AD/HD, LD, and these
psychiatric disorders belong with the list of
impairments . . . that will consistently meet
the definition disability.
78
And because…
These disorders . . . are neurobiological
disorders that, by definition, substantially limit
a major bodily function was recognized by
Congress in the colloquy between
Representatives Stark and Miller.
79
Another Concern:
• Proposed by EEOC: eliminate the terms “condition, manner
or duration” from the analysis of “substantially limits”
• Recommendation: Amend Section 1630.2 (j)(1) as follows:
Substantially Limits—(1) In general. An impairment is a
disability within the meaning of this section if it
‘‘substantially limits’’ the ability of an individual to perform
a major life activity, as compared to how the major life
activity in question is performed by most people in the
general population. An impairment need not prevent, or
significantly or severely restrict, the individual from
performing a major life activity in order to be considered a
disability.
80
Rationale for the Group’s recommendation:
The Senate Statement of Managers states that
the “manner in which we understood the
intended scope of ‘substantially limits’ in 1990
continues to capture our sense of the
appropriate level of coverage”
(“important life activities are restricted as to the conditions, manner, or
duration under which they can be performed in comparison to most people.”
(1989 Statement of the Managers))
81
ADAAA was effective January 1, 2009 What’s been happening?
• Jenkins v. National Board of Medical
Examiners (5th Cir, Feb. 2009)
• Serwatka v. Rockwell Automation, Inc. (7th Cir,
Jan. 2010)
• Enyart v. National Conference of Bar
Examiners (ND Ca, Feb 2010)
• Trafton v. Sunbury Primary Care, PA (D. Me,
Feb. 2010)
82
PART FIVE:
DOJ’S PROPOSAL AND TESTING
ENTITIES
83
DOJ’s ADA regulation: Organizations
that administer standardized tests
“Any person that offers examinations or courses
related to applications, licensing, certification, or
credentialing for secondary or post-secondary
education, professional, or trade purposes shall offer
such examinations or courses in a place and manner
accessible to persons with disabilities or offer
alternative accessible arrangements for such
individuals.”
42 U.S.C. § 12189
84
In 2008, the U.S. Department of Justice issued
updated regulations and guidance on the ADA
and standardized tests
29 C.F.R. § 36.309(b)
Section 309 of the ADA is intended to . . . ensure that individuals with
disabilities are not excluded from educational, professional, or trade
opportunities because examinations or courses are offered in a place
or manner that is not accessible. See 42 U.S.C. 12189.
•Through its enforcement efforts, the Department has discovered that
the requests made by testing entities for documentation regarding
the existence of an individual's disability and her or his need for a
modification or an auxiliary aid or service are often inappropriate or
burdensome. . .
85
Section 36.309(b) as revised:
while it is appropriate for a testing entity to
require that an applicant document the existence
of a disability in order to establish that he or she
is entitled to testing modifications or aids, the
request for documentation must be appropriate
and reasonable. Requested documentation
should be narrowly tailored so that the testing
entity can ascertain the nature of the disability
and the individual's need for the requested
modification or auxiliary aid.
86
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.
87
When an applicant's documentation is
recent and demonstrates a consistent
history of a diagnosis, there is no need
for further inquiry into the nature of the
disability. A testing entity should
consider (but not require) an applicant's
past use of a particular auxiliary aid or
service.
88
PART SIX:
PREPARING FOR CHANGE
89
Be aware of DOJ’s proposals
• Read the proposed rules and preamble
• You’ll better understand the final rules
• Alert others
• Go ahead with emergency planning
90
RESOURCES:
• ADA One web site:
Information under “focus areas,” higher education:
http://ada-one.com/focus/higher-education/
• February 2010 ALERT article at ahead.org
• Handouts
– Accessibility Acronyms
– Access Basics: The laws, the regulations,
the standards (and where they come from)
– Physical Accessibility in Higher Education
– Highlights of DOJ Proposed Rules:
Impact on Higher Education
91
Changes to accessibility standards
• Don’t start “complying” with “new” ADA accessibility
standards, because there aren’t any.
• If you design to the proposed standards, you may violate
the existing ones
E.g. reduced scoping for assembly areas
• BUT if you design to certain provisions in the proposed
standards/ADAAG that are stricter, you’ll probably be ok
E.g., 48” reach range
• Consider state and local accessibility requirements as
well
92
Guiding your institution
• Start effort to budget time and money for
compliance
• Plan to plan:
• How do you comply without a plan?
• Do plans need updating?
(Has anything changed in the last 20 years?)
93
Is it better not to assess the problems?
Or is it better to acknowledge issues and fix them?
94
New regulations likely in 2010.
So, WHAT DO I DO NOW?
• The key word is “Reasonable”
• Remember, the statute is key to future court
interpretations . . . Regulations follow statute
• Changes to the proposed regulations regarding Section
309, cannot violate Congressional intent that
“substantially limits” is not inconsistent with
intelligence, competence, capability or talent. Such
individuals are entitled to protection.
• Refer to AHEAD’s Best Practices Resource
www.ahead.org/resources
95
CLOSING
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CONTACT:
Irene Bowen, J.D.
President, ADA One, LLC
9 Montvale Court
Silver Spring, MD 20904
[email protected]
Http://ADA-One.com
301 879 4542
97
CONTACT
Jo Anne Simon, Esq.
Jo Anne Simon, PC.
356 Fulton Street
Brooklyn, NY 11201
[email protected]
www.joannesimon.com
718 852-3528
98