Transcript Fall Conference Presentation

Understanding the Basics of ADA: Post ADA
Amendments Act, and Disability Awareness
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Graham L. Sisson, Jr.
Executive Director
General Counsel
Governor’s Office on
Disability
• Deputy General
Counsel
• Dept. of Rehabilitation
Services
• State ADA
Coordinator
• Adjunct Professor
Contact Information
• 800-205-9986 ADA Hotline
• 205-290-4540 Bham Office
• 334-293-7189 Mont’gy Office
• [email protected]
• [email protected]
Overview
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All information provided is non-binding
Ultra-Reader’s Digest Version
Governor’s Office on Disability
Disability as part of Diversity in college admissions and awareness
To effectively serve students with disabilities should have a basic legal
understanding as well as disability etiquette.
Overview of Applicable Disability Rights laws/Updates
Threshold issues
Typical Physical Barriers
Service Animals
Reasonable Accommodation
Specific Issues
Policies
Disability Etiquette
My Personal Experience
• Injured in 1982 motor vehicle collision with drunk
driver
• Paralyzed from waist down and suffered a closed
head injury
• Attended college and law school using a wheelchair
• Suffered some employment discrimination
• Have experienced public perception of PWD
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5 dollar episode
Restaurant example
Decreased expectations
Want to live American dream
Governor’s Office on Disability
• Two major purposes
• A. Serve as statewide clearinghouse for
disability information
• B. Serve as liaison to Governor on disability
issues
• Also identify unmet needs of PWD across the
state of Alabama
• www.good.alabama.gov
• Become a part of GOOD list.
• Call us- we can help!
Central Concepts
• Treat PWD as individuals.
• Best answer usually- “it depends”.
• Best to ask first “How can I help you”, not
“What is your disability?”(At least not at first)
• Relax, do your job and remember good
customer service or employee relations.
• Learning about disability culture is as
important as a basic understanding of
legalities.
Context
• While it is important to understand the laws,
such understanding is insufficient unless one
is aware of disability as a separate culture
and an equal part of diversity.
• Having a working knowledge of disability
terminology and etiquette will ensure
smoother communication with PWDs and
lead to optimal reasonable accommodation.
Threshold Issues
• Is the student’s condition severe enough to qualify as
a disability under the applicable laws?
• Is the student with a disability (PWD) qualified to
participate in the program or service?
• Is there sufficient documentation of disability?
• Is the PWD entitled to reasonable accommodation?
(is there documentation tying the need for the
accommodation to the disability?)
• Does the requested accommodation pose an undue
hardship or cause a fundamental alteration?
Disability Specific Laws
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Americans With Disabilities Act (ADA)
ADA Amendments Act of 2008
Rehabilitation Act of 1973 , Section 504
Individuals With Disabilities Education Act (IDEA)
Family Educational Rights and Privacy Act of 1974
(FERPA)
• Fair Housing Act, as amended in 1988 (FHA)
ADA OVERVIEW
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MAINSTREAMING
EQUAL OPPORTUNITY
ACCESS
CIVIL RIGHTS
Five Titles of the ADA
• Title I: Employment
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Title II : Public Entities
• Title III: Public Accommodations (private
businesses)
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Title IV: Telecommunications
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Title V: Miscellaneous
Definition of Disability
• Physical or mental impairment that
substantially limits a major life activity or
• Record of impairment or
• Being regarded as having an
impairment
• The ADAAA restored the definition of
disability to Congress’ original intentafter the ADAAA it is much easier to
prove ADA disability.
Qualified Individual with a Disability
• Meets essential eligibility criteria for
participation in the program, activity
or Service (Title II)
Rehabilitation Act Impact
• The Rehab Act definition of disability is
changed to conform to that within the
ADAAA.
U.S. Supreme Court Decisions
Impact
• Sutton trilogy
– Three decisions that mandate consideration of
corrective or mitigating measures when
determining substantial limitation
– Sutton: eyeglasses
– Murphy: high blood pressure medication
– Kirkingburg: behavior modification for monocular
vision
• Toyota v. Williams
– To be an ADA disability must substantially
limit activities of central importance in life
ADA Amendments Act (ADAAA)
of 2008
 Became law on September 25, 2008.
 90 to 95% of ADAAA concerns the definition of
disability
 Reverses Sutton and Toyota decisions
 Also clarifies that covered entities under the ADA do
not have to accommodate those regarded as having
a disability.
 It became effective on January 1, 2009.
 Shifts emphasis from whether or not there is a
disability to whether there has been discrimination.
Major life activities
• The ADA Amendments Act
has the following nonexclusive list:
• Caring for oneself
• Performing manual tasks
Learning
Breathing
• Reading
Seeing
• Hearing
Speaking
• Eating
Concentrating
• Sleeping
Thinking
• Walking
Communicating
• Standing
Working
• Lifting
Bending
Major Bodily Functions
• ADAAA Also defines major life activities to include
major bodily functions like
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Immune system
Normal cell growth
Digestive
Bowel
Bladder
Neurological
Brain
Respiratory
Circulatory
Endocrine
Reproductive
Exclusions
• “Regarded As” Disability does not include
impairments that are transitory or minor.
• Transitory means an impairment with an
actual or expected duration of 6 months or
less.
• Can consider corrective measures of
eyeglasses or contact lenses
• Episodic conditions or those in remission are
covered if there is a substantial limitation
when active.
Covered Disabilities
• In the legislative history for the ADAAA,
there is an in- exhaustive listing which
includes
– Diabetes
– Intellectual disabilities
– Dyslexia
– Learning disabilities
Reverse Discrimination
• The ADAAA clarifies that there is no
reverse discrimination based on
disability.
Reverse Discrimination
• There shall be no allowance of claims
that an individual without a disability has
been subjected to discrimination
because of his or her lack of disability.
• For instance, a student without a
disability cannot sue because students
with disabilities were given extra time on
a test, and he or she was not.
Major Life Activity
• Only one major life activity needs to be limited
to get coverage under the ADAAA.
• In particular, an individual is not denied
coverage under the ADAAA because of an
ability to do many things so long as that
person is substantially limited in just one
major life activity.
• For example, a student may be able to take
care of many household activities, but still be
substantially limited in the major life activity of
thinking.
Impact of ADAAA
• Higher Ed. Institutions should be ready
to handle more requests for
accommodation.
• According to AHEAD, some surveys
predict 6 to 9 % of the college
population has a disability.
Fundamental Alteration
• The ADAAA has a specific statement that it does not
change the obligation to reasonably modify policies,
practices or procedures unless there is a
fundamental alteration of the nature of the goods,
services, privileges, advantages, etc. that are
provided.
• This includes academic requirements in postsecondary institutions such as substitution of courses
to meet degree requirements, length of time
permitted to complete degree requirements, or
adaptation of manner in which particular courses are
conducted.
New Regs.
• For individuals who do not use a mitigating measure (including,
for example, medication or reasonable accommodation that
could alleviate the effects of an impairment), the availability of
such measures has no bearing on whether the impairment
substantially limits a major life activity.
• In order to have regarded an individual as having a disability, a
covered entity need not have considered whether a major life
activity was substantially limited, and an individual claiming to
have been regarded as disabled need not demonstrate that he
or she is substantially limited in a major life activity
Post ADAAA Cases
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Ivey v. First Quality Retail Service (9/21/12) - Disposable diaper manufacturer was sued
by pro se litigant for disability discrimination under the ADA. Employee had carpal tunnel
syndrome. Employee was terminated after light duty work was ended. Employer
successfully claimed that employee was not qualified. Focus shifted from whether or not
she had disability to qualified. Employee tried to claim hostile work environment after other
employees and team leader referred to her as “Robo Cop”. This case involved ADAAA, but
since disability not disputed- ADAAA not implicated since no changes to qualified under
ADAAA. Court emphasized that an accommodation is reasonable only if it will enable the
employee to perform the essential functions of the job. Also, the employee has the burden
of identifying reasonable accommodations.
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Ross v. Jefferson County Depart. Of Public Health (9/17/12)- whether state
agency is immune under 11th Amendment from a disability discrimination claim
under the ADA (immunity under Title I for monetary damages – following Garrett
decision) 11th Circuit found immunity, finding Jeff. County DPH a arm of the
state and thus a state agency. The employee was a dental assistant with
fibromyalgia. The court did not allow injunctive relief since the employee did not
sue an individual officer or official - injunctive relief can only issue against an
individual officer.
Typical Physical Barriers
New ADAAG
• Compliance with the 2010 Standards for Accessible Design is
permitted after that date, but not required until 18 months after
the date of publication (September 15, 2010).
• Covered entities are given the choice of following the new
standards or original standards (ADAAG 1991) during the first
18 months after September 15, 2010 for new construction or
substantial renovation.
• After 18 months, use of the 2010 standards will become
mandatory (March 15, 2012).
• Safe Harbor: Elements in covered facilities built or altered
in compliance with 1991 standards are not required to be
brought into compliance with the 2010 standards until such
elements were subject to a planned alteration.
2010 ADA Standards for
Accessible Design
• Changes to the 1991 Standards
– The 2010 ADA Standards for Accessible
Design contain more than incremental
changes.
Reach Ranges
• Reach Range Requirements (Section 308)
– The reach range requirements have been
changed to provide that the side reach range must
now be no higher than 48 inches (instead of 54
inches) and no lower than 15 inches (instead of 9
inches).
– The side reach requirements apply to operable
parts on accessible elements, to elements located
on accessible routes, and to elements in
accessible rooms and spaces.
Toilets/Water Closets
• Water Closet Clearances in Single User Toilet
Rooms (Sections 603, 604)
– In single-user toilet rooms, the water closet now
must provide clearance for both a forward and a
parallel approach
– and, in most situations, the lavatory cannot
overlap the water closet clearance.
– The in-swinging doors of single use toilet or
bathing rooms may swing into the clearance
around any fixture if clear floor space is provided
within the toilet room beyond the door´s arc.
Other Changes
• Assembly area requirements (Sections 221,
802)
• Location of Accessible Routes to Stages
(Section 206)
• Transient Lodging Guest Rooms (Sections
224, 806)
• Common Use Circulation Paths in Employee
Work Areas (Sections 203.9, 206.2.8)
• Still others …
Swimming Pools
• Requires Accessible means of entry like pool lifts
• Was originally effective March 15, 2012
• Later postponed until September 15, 2012- but now
extended to January 31, 2013.
• Pools with linear wall space greater than 300 feet
must have 2 accessible means of entry one of which
must be a pool lift; less than 300 linear feet must
have at least 1
New Title II and III
Regulations
• In general, these final rules will take
effect 6 months (March 15, 2011) after
the date on which they are published in
the Federal Register. (September 15,
2010).
• Same safe harbor as ADAAG
New Title II and III Regs.
• Definition of service animal basically includes only dogs with
limited exceptions.
• Dogs used only for emotional support are not service animals.
• The final rule also clarifies that individuals with mental
disabilities who use service animals that are trained to perform a
specific task are protected by the ADA.
• The rule permits the use of trained miniature horses as
alternatives to dogs, subject to certain limitations. To allow
flexibility in situations where using a horse would not be
appropriate, the final rule does not include miniature horses in
the definition of "service animal."
• Wheelchairs and other power-driven mobility devices must be
allowed in all areas open to pedestrian use.
• Includes VRI (Video Remote Interpreting) as a kind of auxiliary
aid to provide effective communication.
HUD Therapy Animal Rule
• HUD issued a final rule amending its regulations concerning the
requirements for pet ownership in HUD-assisted public housing
and multi-family housing projects for senior citizens and
persons with disabilities.
• Pet rules do not apply to assistance animals, therapy animals,
companion animals, or emotional support animals.
• HUD states that use of assistive animals in the housing context
is controlled by reasonable accommodation law.
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The PWD must demonstrate a connection between his or her disability
and the function the service animal provides such as providing
emotional support for those PWD who have a disability-related need for
support.
University of Nebraska at Kearney case
Fair Housing Act
• Therapy Animals are not covered
service animals under the ADA
• However, they are covered by the FHA.
• HUD has taken position that they should
be allowed in campus apartments.
Residential Housing
• Residential housing programs provided by
title II entities are covered by the ADA.
• For the first time, however, the final rule
establishes design requirements for
residential dwelling units built by or on behalf
of public entities with the intent that the
finished units will be sold to individual
owners.
• These design requirements are set forth in
the 2010 Standards.
Title III New Regs. Highlights
• Ticketing, Service Animals, mobility
devices, and VRI: same new rules as
Title II.
New Title III Regs.
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Reservations Made by Places of Lodging. The rule establishes
requirements for reservations made by places of lodging, including
– procedures that will allow individuals with disabilities to make reservations
for accessible guest rooms during the same hours and in the same manner
as other guests,
– and requirements that will require places of lodging
• to identify and describe accessible features of a guest room,
• to hold back the accessible guest rooms for people with disabilities until all other
guest rooms of that type have been rented,
• and to ensure that a reserved accessible guest room is removed from all
reservations systems so that it is not inadvertently released to someone other
than the person who reserved the accessible room.
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The final rule limits the obligations of third-party reservation operators
that do not themselves own and operate places of lodging.
In addition, to allow the hospitality industry appropriate time to change
reservation systems, the final rule gives places of lodging 18 months
from the date of publication to come into compliance with these
requirements.
Timeshares/Condos/New Title III
Regs.
• Timeshares, Condominium Hotels, and Other Places of
Lodging: The rule provides that timeshare and condominium
properties that operate like hotels are subject to title III,
providing guidance about the factors that must be present for a
facility that is not an inn, motel, or hotel to qualify as a place of
lodging.
• The final rule limits obligations for units that are not owned or
substantially controlled by the public accommodation that
operates the place of lodging.
– Such units are not subject to reservation requirements relating to
the "holding back" of accessible units.
– They are also not subject to barrier removal and alterations
requirements if the physical features of the guest room interiors are
controlled by their individual owners rather than by a third party
operator.
Reasonable Accommodation
• The dialogue (process established by policy)
• Must be effective (enable student to
participate in course or program)
• Applies only to barrier removal related to
disability
• Not personal use item
• May go beyond requirements of ADA
Reasonable
Accommodation Burden
• Title I I and /or III requires a covered school to
provide reasonable accommodations to qualified
individuals with disabilities unless to do so would
cause an undue hardship.
• In general, an accommodation is any change in the
work environment or in the way things are
customarily done that enables an individual with a
disability to enjoy equal opportunities.
• The key is to provide an accommodation that gives
an effective equal opportunity in an equally integrated
way.
TYPES OF REASONABLE
ACCOMMODATION
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Modify written examinations or training
Adopt flexible policies (reasonable modification of policy)
Modify class site
Adjust schedules
Acquire/modify equipment/devices
Provide readers/interpreters
Relocation of class
?Use of calculator
Alternative formats
Time and a half
E-text
Private room/reduced distraction area for taking tests
Audio taped questions
Breaks
taped textbooks, use of a tape recorder, instructions orally and in writing, note
taker, and priority seating
Legally rejected
accommodations
• Breaking down questions into parts and responding in outline
form instead of essay format
• Open book exam where purpose of test was to measure recall
despite physician’s recommendation
• Taking test at home where recall was found essential
• Modifying test questions –not reasonable -- “equal opportunity”
not “equal outcomes”
• Course substitution not always required
• Tutorial services not required by ADA/Section 504
• Did not request accommodation and failed exam; not RA to
have test result removed from record
REASONABLE ACCOMMODATION
PROCESS
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Student with disability must request accommodation
Must request one that is reasonable
Does not have to use any magic words
School and student should then engage in interactive process to
determine most effective accommodation (often will involve disability
support office)
School gets to choose accommodation provided, but it must provide
one that enables student with a disability to perform to participate in the
class and/or school activities.
School does not have to provide any accommodation that would
impose an undue burden. If undue burden must consider alternatives or
allow student to fund portion that constitutes undue hardship.
No notice; no right to accommodation
Reasonable Accommodation
Defense
• Fundamental alteration
• Defeats essential eligibility requirements
• Example: student is in international relations
or studies program and wants college to
eliminate foreign language requirement due
to LD.
• Would elimination of this requirement pose a
fundamental alteration or defeat essential
eligibility requirements?
Disability Documentation
• Can require reasonable documentation of disability and need for
accommodation as related to disability.
• Should have a committee that reviews requests for
accommodation(s) and decides which accommodation(s) to
provide.
• Need to have consistency and fairness.
• Be careful not to insist on documentation where disability and
need for accommodation are obvious.
• Documentation should state the diagnosis and tests and
methods used in the diagnostic process, evaluate how the
impairment impacts PWD, and recommend reasonable
accommodations.
Disability Documentation
• It should be current, which usually
means no older than 3 years.
• Many colleges like to see the IEP or
Section 504 plan, but it is usually not
sufficient unless there are recent test
scores or a psychologist’s report
Requests for
Accommodations
• Students will need to make these each
semester.
• It is best to request them before the
beginning of each semester
Confidentiality of Records
• Family Educational Rights and Privacy Act of 1974 (FERPA),
protects the privacy of students' educational records.
• Information in college records about a student’s disability and
accommodations, if any, must be treated as confidential.
• With a student’s permission or on a need-to-know basis, a
counselor may consult with faculty and staff.
• The most common type of communication is with a student’s
professor or academic advisor.
• Once the college has disclosed information about a disability,
the recipient of that information also has a responsibility to
protect confidentiality.
Parent Rights
• Can a school disclose information to the
parents upon receiving a request from
them- particularly if they want to make
sure their child with a disability is doing
ok?
• Generally, no- unless the student has
signed a release for the parents.
Payment for Testing
• Will the college pay for testing for
purposes of determining
accommodations?
• Generally, no. However, the student
should seek other possible funding
sources such as insurance or VR.
Policy 101
• A good policy should be clear and concise
• Gives guidance on how to address almost any situation
(although it may not be possible to address every scenario)
• Will need to be monitored and revised periodically (at least
annually)
• Never put anything in a policy that your organization will not
adhere to (otherwise it will be used against your entity)
• Due to time restraints, I will not be able to cover specific
language for every word in a policy.
• My office can assist with drafting/revision of ADA related policies
Reasonable Accommodation
Policy
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Basic Elements
Overview paragraph
Who is covered? (Disability defined)
Documentation to show disability
Confidentiality of medical or disability information
What triggers need to accommodate
The process for requesting accommodation
– Who to contact
– When to contact
Who decides the accommodation
Types of accommodations (not exhaustive list)
Timeline for providing
Date policy implemented
Disability as Diversity
• Equal part of diversity
• Persons with disabilities have a
separate culture
• Largest minority in U.S.
Disability Awareness
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Disability Etiquette
Make eye contact
Speak to person with a disability directly
Never ask someone associated with a
PWD what that person needs or wants
• Do not be afraid- PWD are people first
Offering Assistance
• Before helping a PWD, ask him or
her
• Do not be upset if someone refuses
help
• Ask the person how they prefer to
be helped as he or she knows best
• "The beginning of wisdom is to call
things by their right names."
Old Chinese Proverb
• "The difference between the right word
and the almost right word is the
difference between lightning and the
lightning bug."
Mark Twain
Why Care About Disability?
• Disability does not demean or lessen a
person's self worth or his or her ability to
contribute to society.
• Disability is a natural part of the human
experience. If you help people with
disabilities, you will be helping yourself
one day or a family member or a friend.
Anyone can acquire a disability in a split
second. (TAB)
• Disability is an equal part of diversity as
race or sex or national origin except that
is crosses all social strata.
People First Language: the
Good, the Bad , and the Ugly
• Good: Always refer to the person first:
• Example: “person with a disability”, not “disabled”
person
• Bad: Do not use “handicapped person”
• “Handicap” has origins that many PWD think make it
synonymous with “beggar; also comes from game in
1600s.
• Ugly: Others words to avoid : “ cripple, invalid,
wheelchair bound, confined to a wheelchair” etc.
• Just plain dumb: More words to avoid: “differently
abled”, “challenged”, “able bodied”, “special”, “gimp”
or “gimpy”, “afflicted”, “suffering from”, etc...
Language
• Caveat: do not avoid speaking to someone
with a disability out of fear of saying the
wrong thing.
• Example: Ok to say to a person with a visual
impairment “see you later.”
• Many PWD have a sense of humor.
• Do not allow a negative experience with one
PWD to cloud attitude toward other PWD
Myths
• All PWD meet in a convention each year or
know each other
• PWD cannot work
• Disability is contagious
• PWD are superheroes or “inspirational.”
• PWD can live off the government
• PWD are "victims"
• PWD have everything paid for them
• PWD are few in number
TRUTH
• Disability is a natural part of the human
experience
• There are approximately 54-56.7 million
PWD
• In Alabama there are approximately
945,000 PWD; prevalence rate may be
as high as 25.9%.
• PWD want to be fully contributing
members of society
• PWD want what everyone else does: family,
job, transportation, happiness, etc.
TRUTH
• People with disabilities can work.
• Do not be afraid to include them in your
workforce.
• Education and assistive technology are
2 great equalizers that enable
individuals with disabilities to be
successful on the job.
Thank you
• ANY QUESTIONS?
• THE END!